Social Change and Its Relation to Islamic Inheritance Practice

Social Change and Its Relation to Islamic Inheritance Practice Zulham Wahyudani1 Raihanah Hj Azahari2 ABSTRACT This thesis generally discussed the social change and its relationship to the practice of Islamic inheritance. This study aims to investigate the impact of the social change in altering the inheritance law. Data for this study were gathered through various Islamic literatures, books, articles, seminar papers and other related materials. The findings of this study revealed that the social change has influence on the altering of the Islamic inheritance law within the community. However, the change was limited only for the law that was resulted from maslahah al-mursalah, as wasīyyat al-wajībah problems that have been legislated laws in Muslim countries, not the qat‘i laws as it was originally coming from the divine source. As this study has several limitations, it was recommended that future studies need to examine this matter more comprehensively due to some deficiencies in its application such as the use of fiqh and ushul methods. Keywords: Social change, Law change, Wasīyyat al-wajībah 1. Introduction Social change is defined as the change within community which alters that particular society.However, some social scholars give different point of view in what aspect caused the alteration in society. In a dominated Muslim society, the social change has occurred in the waypeople split the inheritance. People divide their wealth or property based on the cultural background from generation to generation; somehow, it triggers the disappointment for some heirs. However, according to them, if the inheritance law is based on Islamic scholarsin fiqhmazhab, there will be discrimination between heir and heiress. The Islamic scholars acknowledged that the inheritance division has been settled in Al-Quran and the supplementary explanation has been delivered by our Prophet through hadith. In Islam, the heritage division has had a strong foundation. Some verses in Al-Quran have often mentioned by Islamic scholars as the basic rules in heritage sharing, they are found in Surah an- Nisa‟ verses 7, 11, 12 and 176. Additionally, the source of inheritance has also explained by hadith. According to Ahmad Rafiq, Imam Bukhari explained aboutIslamic law of heritage in approximately 46 hadith while Imam Muslim had 20 hadith. 3 1 Master Candidate, Fiqh and usul departement, Akademi Pengajian Islam, Universiti Malaya, Kuala Lumpur Senior Lactures, Fiqh and usul departement, Akademi Pengajian Islam, Universiti Malaya, Kuala Lumpur 3 Ahmad Rafiq, Hukum Islam di Indonesia, (Jakarta: Rajawali Press, 1997), 379. 2 1 Islam, through al- Quran and hadith, has provided detailed regulations in sharing the inheritance, therefore, most of Muslims believe that the ruleshave been settled and cannot be changed. Yet, the development in Muslim society and its relation to social change has limited the juristic resources of inheritance when they are only based on certain requirements. The Islamic scholars think about several requirements which are not opposed by Islamic. The requirements are made in order to give benefits for the humankind. It is due to the fact, most of Muslim society do not want to follow the Islamic law in heritage sharing when they deal with social behavior. They prefer sharing the property without looking at different sex. This reality has been found in some societies who are considered to have a strong Islamic base such as South Sulawesi, South Borneo and Aceh.4 It can be concluded that the cause of differences in splitting the inheritance is the social changes happened within society. This social change is caused by the equity factor between male and female. Somehow, this factor also becomes the issue of injustice between heir and heiress while the rolesin acquiring social needs have been conducted together. 2. Definition of social change Social change is defined as the alteration in community from one life phase to the next phase. This is a phenomenon often found in a society. Social change can be in found in modification, social institution or lifestyle. The change is important in social behavior.5By the time, people change continuously and it occurs to provide the solutions for each of social needs.6 Therefore, it can be said that the social changes go along society- based problems such as demographic issues ( the change in the number of population or the society movement from one place to another place ), economic issue ( poverty) or industrial issue ( farmers shift to be labors). Furthermore, some social researchers has given different notion in defining social change, such as Keoning who believed that social change refers to modifications in lifestyles which caused by both internal and external factors.7 4 Munawir Sjadzali, Islam Realitas Baru dan Orientasi Masa Depan Bangsa, ed.ke-I, (Jakarta: UI Press, 1993), 19. 5 Samuel Koening, Mand And Society, the Basic Teaching of Sociology, ed ke-1, (Net York: Boerners Van Noble Inc, 1957), 279 6 Muhammad Khalid Mas‟ud, Filsafat Hukum Islam dan Perubahan Sosial, (Surabaya: Al-Ikhlas,1995), 44. 7 Samuel Koening, Mand and Society, the Basic…,279. 2 Additionally, Kingsley Davis said that social change is the change in community‟sstructure and functions.8 Social change is a part of cultural change. For example, if there is a labor organization in a capitalist society, it can influence the relationship between labors and owners where it causes the modification in political belief.9 Social change is also understood as the change occurred in society from one life phase to the next phase. Generally speaking, social changes can be said as social movement to a better or worse life phase and the outcome of social change portrays the movement that has been taken by that particularsociety. At the end, the society is pushed to adapt the new life or they try to bring back the previous situation. It all depends on the society itself.10 Hans Gerth and C. Wright Mills identified social change as the change in social structure: the roles, the institutions, and the growth of social community whether from the aspect of social institutions or social roles.11 According to Robert M.Maclver, social change is “meant change in social relationship “.12Ronald Edari added that social change happens within social institution and it affects the social relationship from year to year.13 The social change also refers to the change in new norms which are considered as resources for the unity of society. The change is seen as the solution for the new needs found within community where the norms are considered more appropriate in building and expanding the relationship with new community.14 Instead of those theories, there are more social science experts who define this concept. However, all of those definitions show how a society can be easily influenced by different factors which bring to the social change. According to Steven Vago, different approaches are made to reach an ultimate unity. In short, it can be seen that the concept of social change is a social phenomen on which occurs qualitatively or quantitatively and conscious or unconsciously as well.15The 8 Kingsley Davis, Human Society, (New York: The Macmillan Company, 1949), 622. Elly, M Setidi dan Usman, Kolip, Pengantar Sosiologi Pemahaman Fakta dan Gejala Permasalahan Sosial Teori, Aplikasi, dan Pemecahannya, (Jakarta: Kencana, 2011), 610. 10 Rozalli Hashim, Pengurusan Pembangunan, (Kuala Lumpur: Dewan Bahasa dan Pustaka, 2005), 79. 11 Hans Gerth and C. Wright Mills, Character and Social Structure; The Psychology of Social Institutions, Ed.ke-4, (London: Routledge & Kegan Paul Ltd, 1969), 398. 12 Robert M. Maclver, and Charles H Page, Society: an Introductory Analysis, (New York: Holt, Rinehart &Wiston, 1949), 511. 13 Ishomuddin, Sosiologi Agama: Pluralisme Agama danInterprestasiSosiologis (Malang: Umm Press, 1996), 111 14 Ibid. 15 Steven Vago, Social Change, Ed ke-dua, (New Jersey: Prentice-Hall. Inc, 1989), 24. 9 3 quantitative change occurs in social structure which affects the roles and function within society.16 Therefore, it can be sum up that the notion of social change is defined as every alternation happens in stucture, function, lifestyle and behaviour of society which influence social system and this change will bring the outcomes for solving social problem by creating the new value, function and norms in society. 3. Social change and its relation to inheritance division History has shown that the socialization of inheritance division is not only based on Al-Quran and hadith. These two resources are the main references in Islam, particularly during the life of the Prophet Muhammad (Peace Be upon Him). After the death of Muhammad P.b.u.h, there has been increasing number in Al-Quran and hadith interpretation especially in understanding the Islamic law. The social change has happened in every place and country, consequently, the law system in some Muslim countries does not strongly follow the law anymore. There are some changes madein heritage sharing especially the rights which are related to fatherless grandchildren also known as the heir representative, also there is possibility to get a daughter block the family from one lineage. Five countries have had the answer to the problem of heritage sharing to those fatherless grandchildren, they are Egypt,17Iraq,18Pakistan, Tunisia,19 and Syria.20. The law of heritage in Egypt (1946) is taken care by an institution called wasīyyat al-wajībah (obligatory testament); the heirs are considered to give testament directly to the fatherless grandchildren. The portion of the property is as much as the right that should be received by the father or –at least- a third of the heritage (a maximum number). InTunisia law (1959), instead of applying the rules of this wasīyyat al-wajībah, the daughter also possible to prevent the heir from this line.21 16 Rozalli Hashim, Pengurusan Pembangunan…, 80. case 37 and 76-79, Qanun al-Wasiyyah li-Jumhuriyah Misr al-Arabiyah (1946) 18 Case 73-74, from Iraq Civil Code (Qānūn al-Madanī) 1951 to case 1108, No. 188/1959 to change No. 72/1979. 19 Case 191-192, no. 77/1959; and Case 179, 182-189 Tunisian Law of Personal Status Code, Addenda of 1959. 20 Perkara 238/2, 257, Syrian Code of Personal Status (1945). 21 N. J. Coulson, Succession in The Muslim Family, (London: Cambridge University Press Bentley House, 1971), 145. 17 4 Then, Pakistan law (1961) also accepts the substitute heir, but only those who are the lineal descendants22; males or females. Yet, it is different from the laws in Syria; wasīyyat alwajībahis only for heir and heiress not the ancestor from the female‟s lineage.23 The change of heritage division in Egypt is the right for the fatherless grandchildren, which are prevented to get the ancestor rights through the testament. The testament is legallycalled wasīyyat al-wajībah. Egypt law number 17/1946 manages this issue in its chapters: 76-79, 24the translation is: The official description of the laws mentioned that the pressure to include those chapters are due to the complaint from the fatherless grandchildren who do not received their heritage portion as they are blocked by their father‟ siblings. Even though people usually make a will to the fatherless grandchildren, death is something that is unpredictable and sometimes people has not had time to tell their will. Therefore, the laws accommo date this unspoken will and consider it as has been said or noted. According to Abu Zahrah, it is often found that the fatherless grandchildren live in poverty while their father‟s siblings usually have a good socio economic life. Those children are suffering as they lost their father as well as their rights in heritage division. Sometimes somebody is going to have a will for them but unfortunately he/she passed away before doing so. Consequently,the laws take over this will which is not known by 4 Mazhab (sects), but. It comes from some opinions of Islamic scholars.25 Based on 4 Mazhab, it has been decided that the law of family‟s heir who do not get the heritage is sunnah.26This is based on the verses in Al-Quran related to heritage division which has discussed the heritage rights for parents and other family members. Furthermore, looking at history, Prophet and most of his companions (sahabat) did not give the will for their family member. Most of Islamic scholars reckoned that the obligation to give testament will remain especially in solving any duties that have not paid yet such as debts, Zakat or kafarat. This obligation has characteristics as ta’abudi and not qada’i, it means that the person will be N. J. Coulson, Succession in The Muslim …,145. N. J. Coulson, Succession in The Muslim…, 144. 24 Sayyid Hasan al-Baggal, Mudawwanat al-Tasyri’at al-Masriyyah, (Kairo: „Alam al-Kutub, 1979), 208-209. see at Al-Qardawi, Ijtihad Dalam Syariat Islam, (terj), Ahmad Syathari, ed.ke-1 (Jakarta: Bulan Bintang, 1987), 174 25 Abū Zahrah, Ahkāmal-TarīkhWaal-Mawāris, (Kairo: Dar al-Fikral-„Arabi, t.t.),279 26 T.M. Hasbi ash Shiddieqy, Fiqh al-Mawarist, ed.ke-1, (Jakarta: BulanBintang, 1973), 292 22 23 5 sinful when he/she does not do it. Yet, the court or the family does not have rights to force the testator to speak his/her will. According to Ibn Hazm, when somebody dies before giving the testament, the family of deceased should give some of heritage portion to charity and the portion is considered to be just right.27Ibn Hazm, furthermore, stated that to the family members who do not have the share due to the difference belief, slavery or they are blocked.28 They do not have the provision in the amount of the property they will get. So, it refers to the family considerations as long as it still in a third of inheritance portion. However, Ibn Hazm limited the number of the deceased family who receive the share. If the excluded family members in inheritance sharing are a lot, so he should inherit to –at least – three people.29 From the explanation above, it can be conclude that there are two kinds of testament: the obligatory testament and the sunat testament. The obligatory testament is for the family who are excluded in inheritance division, while the sunna testament is up to the wish of the testator. Moreover, the testator is free to choose the family member who will receive the will limited to three people only. When it is compared between the Egypt laws and Ibn Hazm‟s opinions, it can be seen that the laws take Ibn Hazm‟s point of view as the reference in relation to inheritance sharing. Yet, talking about who will get the inheritance or how much she/ he get, it depends on the law decision. Ibn Hazm said that the heritage can be given to all the family or it can be limited to three people. On the contrary, according to laws, the heritage is only be given to those who tied by blood (have cognation relationship), there is no wasīyyat al-wajībah for the eldersand the kins. Ibn Hazm stated that the minimum amount of wasīyyat al-wajībahis only two –thirds (2/3) of inheritance, while the laws only give less than the permitted heritage division or more than a third of inheritance. 30 From those reasons, the laws consider IbnHazm‟s opinion based on the social need of Egyptians. Based the explanation above and also the laws in former years, there are no discussion and dalil that become the foundation of these laws. 31 Coulson named the Egypt law adoption as quasi ijtihad. The possibility to use the new term beacuse the law is considered as the new issue which did not exist years ago (during the life or 4 Mazhab scholars). But, it doesnt functioned as a full Ijtihad as it still 27 IbnHazm, al-Muhallā, (Cairo: al-Maktab at-Tijari, t.t.), 321. IbnHazm, al-Muhallā…, 314 29 ibid 30 Al-Yasa‟ Abubakar, Rekonstruksi Fiqh Kewarisan: Reposisi Hak-Hak Perempuan (Banda Aceh:LKAS, 2012), 259 31 Abu Zahrah, Ahkamal-Tarikh Waal-Mawaris, (Kairo: Dāral-Fikral-„Arabi, t.t.), 279 28 6 relates to the previous islamic scholars‟ opinions.32Yusuf Al- Qardawy reflected wasīyyat alwajībah in the Egyptian laws as the compilation of selected ijtihad and creative ijtihad. When we look at the name and its relation to prior Islamic scholars‟ ideas, this refers to selected ijtihad. On the contrary, the content is considered as creative ijtihad by implementing mashalah al-mursalah. 33 There are distinctive aspects between the Eyptian laws and the Tunisian laws (1959). Wasīyyat al-wajībah is only applied to the grandchildren ( second generation) and it is not for the lower generation.34According to the Tunisian laws, it is decided that the grandaughters from male‟s pedigree are entitled to block the pedigreed relatives and they receive the remaining wasiran from ar-radd. Therefore, the laws implemented dalil called kalalahin taken from Mazhab Ja’fariyah. For example: among a daughter, grandaughter, mother and siblings (brothers or sisters), so the heritage division will be 3/6 for daughter, 1/6 for granddaughter, 1/6 for mother (total: 5/6). The siblings are blocked by children and the remaining portion (1/6) is given back to daughter and granddaughter based on the share ratio. If the father is still alive, so he becomes the „asabah, and automatically it doesnt need to have ar-radd. Iraq (1963) implemented the qarabah system from mazhab Ja’fariyah, it means that the clan block the relative from one lineage. However, in application it has two interppretations:when it uses Mazhab Ja’fariyah, so the rules are interpreted based on mazhab Ja’fariyah. On the other hand, when the rules are sided with formermazhab, so they will be adjusted based on MazhabHanafi. Somehow, they are different from those in Tunisia where the remaining part of heritage is ar-radd and given to the existing dzawil furud.35 The more systematic rules are introduced in Pakistan through the Muslim family laws ordinance, 1961; ordinance VIII of 1961,36the fourth chapter of the laws mentioned: When there is still a daughter or a son from the deceased, and he passes away when the heritage is intended to be given, so the children received the similar portion to the portion received by their parents.37 32 N. J. Coulson, a History of Islamic Law., also see to Hamid Ahmad , Hukum Islam dalam Perspektif Sejarah, ed.ke-1 (jakarta: P3M, 1987), 237 33 Al-Qardhawi, IjtihaddalamSyari’ahIslam, 179 34 Noel J. Coulson ,Succession in The Muslim Family, (New York: Cambridge University Press, 1971), 139. 35 .Noel J. Coulson ,Succession in The Muslim Family..., 139. 36 Tanzil al-Rahman, Islamization of Pakistan Law, ed.ke-1, (Karachi: Hamdard Academy, 1987), 56 37 In the event of the death of any son or daughter of the propositus before the opening of succesion, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which son or daughter, as the case may be, would have received, if alive.Tanzil alRahman, Islamization of …, 57. 7 According to these laws, in inheritance division practice, the grandchildren do not inherit the wealth from their grandfather as they get blocked by son / daughter. Based on the law makers, the blocking rules are based on the former Islamic era as the society tent to be collectively responsible. The eldest male in “family group” is not only responsible for his own son/ daughter but also for other family members including the orphans. In the early Islam, they tend to live in one household. Nowadays, the socio economic condition is changed; every family tends to form their own households and the responsibility of the eldest males fade away compare to the early Islam. And the rules linked to the blocking family member become irrelevant. When we compare between the renewal laws and Hazairin‟s opinion, it can be seen that the change in laws caused by urgent needs by using marsalih al-mursalah reasoning. And they are, however, not out of the existing fiqh scope and concept. This is different from Hazairin‟s opinion where it is more systematic and fundamental. He tried to think this issue from comprehensive perspective without any bound to both the Fiqh and the Arabians‟ framework. According to a theory, the dominant factor in wasīyyat al-wajībahis the validity of social change in Indonesia society38, it refers to the bilateral family system which is different from the patrilineal Arabian system. The alteration in the specific practice of Islamic inheritance, show a clear example of a renewal aspects in sharia law. It is due to the fact that the Islamic law of inheritance comes from Al-Quran and hadith, also, the fatwa from Islamic scholars found in Fiqh treasury which is collected in a legally written law of a country. The renewal of sharia law is probably occurred from the dynamic Fiqh and maslahat al-‘ammah based on several fiqh mechanisms such as the principle of siyāsah syar’iyyah, takhayyur, talfiq and hiyal.39 Apart from the fiqh mechanism, the change of law is also rooted from certain social conditions, like the change of social customs, the alteration in social welfare, the urgent needs, the time development and the emersion of the new systems. It can be concluded that the change in heritage laws is the maslahah of the social change at that particular time and it can guarantee a better inheritance sharing system to the heirs. The change of laws in several places has been modified such as in Syria (1945), Egypt (1946), Iraq (1951), Tunisia (1959), Pakistan (1961), Philippine (1977), and Indonesia (1991). 38 Roscoe Pound, The Law Theory Of Social Engeneering, dalam Tom Cambell, Tujuh Teori Sosial: Sketsa, Penilaian, Dan Perbandingan, (Yogyakarta: Kanisium, 1994), 13. 39 Jasni Sulong, Pembaharuan Undang-Undang…, 74. 8 Wasīyyatal-wajībah is aimed toprovide a legal system to the poor heirs but they are blocked to get the heritage.40In one case between Nasir and his siblings (1380)41 it decided that a third of the wealth from the deceased family member is given to the grandchildren as they need that part compare to others. The change in heritage practice is based on the socioeconomic context. It can be proved that social change occurredby the time and different opinions from sunni, Ja‟fariyah and other mazhab in Islamic inheritance practice are based on the intention to reach the justice which may be different from one place to other places. The socioeconomic change happened between husband-wife who works together to make a living also a causal factor of social change in order to fulfill the social needs. The change in the practicee of Islamic inheritance applied in one social structure has been accepted and influenced the social system. This change is not related to society‟s growthor regression. The indicators of society development are determined by the social norms and values. 4. Conclusion The change in the law of inheritance division for some Islamic countries in wasīyyat al-wajībah are caused by two social change factors: first of all, nowadays, after the socio economic alteration, every main family tends to have their own household and the sense of responsibility of the oldest male for the closest group becomes less compare to this during the first Islam existence. Then, the laws about the barrier become irrelevant. Secondly, it is the poverty factor. The children who become fatherless often live in poverty while their fathers‟ siblings live lavishly. The fatherless children are suffering from both losing their father and losing the rights in heritage sharing. Therefore, it is important for the president to consider these factors as it often becomes the complaint from the fatherless children who do not receive any share in the wealth as they are be blocked by the father‟ sibling. It needs to be underline that only law resulted from al-maslahah al-mursalah of these Muslim countries which can be changed. This law is based on al-maslahah al-mursalah theory which alters by the time. Yet, the qat‘i law in faraidh stay the same. The portions for the heirs in Islamic inheritance are ½, 2/3, 1/3, ¼, 1/6, and 1/8, those called nasiban 40 Jasni Sulong, Pembaharuan Undang-Undang…, 75. Makkah Grand Court, Case no. 91, vol 1 (1380).Lihatjuga Abdul Aziz M. Zaid, The Islamic Law Of Bequest and Its Application in Saudi Arabia (London: Scorpion Publishing Ltd, 1986), 123. 41 9 mafrudha which are constant and they do not exclude from the existing fiqh concept. To add or to fix some parts in heritage division practice is only the renewal context to keep pace with the change in society. Bibliography Abd. Rahim Abd. Rashid, Perubahan Paradigma Nilai ke Arah Transformasi Sosial dan Pembentukam Malaysia Baru, Kuala Lumpur: Utusan Publications & Distributors Sdn. Dhd, 2001. 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