Ismail Mundu on Islamic Law of Inheritance: A Content Analysis of Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ

Al-Jāmi‘ah: Journal of Islamic Studies Vol. 61, no. 1 (2023), pp. 59-79, doi: 10.14421/ajis.2023.611.59-79 ISMAIL MUNDU ON ISLAMIC LAW OF INHERITANCE A Content Analysis of Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ Muhammad Lutfi Hakim State Islamic Institute of Pontianak, Indonesia email: muhammadlutfihakim@iainptk.ac.id Abstract This article analyses a manuscript on the Islamic law of inheritance, entitled Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ, written by Ismail Mundu. The manuscript resulted from Mundu’s anxiety about the difficulties encountered by his students in understanding the Islamic inheritance-sharing mechanism and the predicted extinction of the Islamic law of inheritance. Through content analysis and historical approaches, the author found that the inclination of thought in Mundu’s Islamic law of inheritance was based on the Shāfi‘ī school with a clearly different point that constitutes its specific and evident contribution. The manuscript included charts containing concise formulas that were not in any other works of Shāfi‘ī school and that could be used as a practical guide to facilitate beginners in learning the Islamic law of inheritance. This article, therefore, contributes to the study of the history of Islamic law by providing evidence of the establishment of local ideas and thought on the Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom and Judge of the Kubu Court from 1907 to 1957. [Artikel ini menganalisis sebuah manuskrip tentang hukum waris Islam, berjudul Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ, karya Ismail Mundu. Manuskrip ini disusun atas keprihatinan terhadap kesulitan-kesulitan yang dialami murid-murid Mundu dalam memahami mekanisme pembagian waris Islam dan ramalan kepunahan ilmu waris karena masyarakat Muslim lebih mengutamakan hukum adat. Melalui studi analisis isi dan pendekatan sejarah, penulis menemukan bahwa kecenderungan pemikiran hukum waris Islam Mundu berdasarkan pada mazhab Shāfi‘ī dengan perbedaan jelas Muhammad Lutfi Hakim yang merupakan kontribusinya yang spesifik dan nyata. Karya tersebut menyediakan jadwal (tabel) yang berisi rumus-rumus ringkas yang tidak terdapat dalam karya-karya mazhab Shāfi‘ī lainnya dan dapat digunakan sebagai pedoman untuk memudahkan para pemula dalam mempelajari hukum waris Islam. Oleh karena itu, artikel ini berkontribusi bagi kajian sejarah hukum Islam dengan memberikan bukti adanya gagasan dan pemikiran local tentang hukum waris Islam yang diterapkan oleh Mundu ketika menjabat sebagai Mufti Kerajaan Kubu dan Hakim Pengadilan Kubu (1907-1957).] Keywords: Islamic law of inheritance, local manuscript, Ismail Mundu, Kubu Kingdom. A. Introduction This paper is the product of historical research describing the Islamic law of inheritance written by Ismail Mundu, the only ulama influential in the Kubu Kingdom in 1941.1 As a prominent scholar in Kubu, the Mufti of the Kubu Kingdom, and the Judge on the Kubu Court,2 Mundu succeeded in rectifying and improving the religious understanding of the people of Kubu Raya and its surrounding communities. Mundu’s spiritual knowledge provided several contributions, as seen in the 29 works he wrote.3 One of his works is about the Islamic law of inheritance, which still exists in the form of a manuscript entitled Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ. At least three factors motivated Mundu to write this manuscript. First, his students have encountered difficulties in learning and understanding the division of assets under the Islamic law of inheritance. Second, the Islamic law of inheritance was vulnerable to extinction since the people have prioritised customary inheritance law. Third, Mundu was motivated by the hadith that predicted that the ‘ilm al-farā’iḍ would be the The Kingdom of Kubu, also known as Kuala Kubu, was established by Sayyid Syarif Idrus bin Abdurrahman al-Idrus in 1780. The last king was Syarif Salih bin Syarif Idrus Alaydrus, died on 28 June 1944; Luqman Abdul Jabbar, Sejarah Kerajaan Kubu (Pontianak: STAIN Pontianak Press, 2013), pp. 15-48. 2 Ismail Mundu was the Mufti of the Kubu Kingdom at the time of King Syarif Abbas (1900-1911), the 6th king. After the kingdom ended and joined the Indonesian national state in 1951, Mundu was later appointed the Court Judge of the Kubu; Baidhillah Riyadhi, Guru Haji Ismail Mundu: Ulama Legendaris dari Kerajaan Kubu (Kubu Raya: Dinas Kebudayaan, Pariwisata, Pemuda dan Olah Raga Kabupaten Kubu Raya, 2011), p. 37. 3 Jabbar, Sejarah Kerajaan, p. 61. 1 60 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance first science to be forgotten and abandoned by the Prophet’s followers.4 Therefore, Mundu wrote this treatise as a guideline, primarily to facilitate beginners (mubtadi’) learn the Islamic law of inheritance. Despite their abundant variations, local Islamic thoughts and works by local ulama in Nusantara get little attention from scholars. The works of Mundu are not an exception. Of the philological research discusses the Islamic family law in West Kalimantan, a thesis written by Didik M. Nur Haris at the University of Malaya in 2011 is the only work that discussed Islamic family law, let alone research that deals with the Islamic law of inheritance in the Kubu Kingdom.5 Few other studies focus on other aspects, such as a study by Baidhillah Riyadhi,6 Wajidi Sayadi,7 and Hermansyah, et al.8 No scholar has researched the manuscript of Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ, which makes it ripe for discussion. This article reveals the practical chart and principles of Islamic inheritance law applied by Mundu when he served as the Mufti of the Kubu Kingdom from 19071950 and the Judge of the Kubu Court from 1951-1957. It describes the mechanism of asset distribution explained in detail in the manuscript and used by Mundu. Then, it analyses Mundu’s inclination to the thought of the Shāfi‘ī school and his chart as his original characteristics in the manuscript compared to other Shāfi‘ī fiqh literatures. B. Local Works on Islamic Law of Inheritance, Ismail Mundu, and the Manuscript of Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ The Islamic law of inheritance is the pandect and a calculation mechanism to determine the division of estate assets by inheritance. In Islamic literature, this provision is well known as the ‘ilm al-farā’iḍ or ‘ilm Ibid., p. 122. Didik M. Nur Haris, “Kitab Jadual Nikah Karya Isma’il Mundu: Teks dan Analisis”, Master Thesis (Malaysia: University of Malaya, 2011), http://studentsrepo. um.edu.my/5109/, accessed 23 Jul 2022. 6 Baidhillah Riyadhi, Fiqh Melayu: Telaah atas Kitab Qonun Melaka (Pontianak: Majelis Adat Budaya Melayu Kalimantan Barat, 2008). 7 Wajidi Sayadi, “Studi Naskah Mukhtashar al-Manan ‘ala al-Aqidah ar-Rahman (Konsep Pemikiran Kalam Syekh Guru Haji Islami Mundu”, Proceedings of International Conference on Nusantara Manuscript (Pontianak: Pontianak Press, 2015), p. 95. 8 Hermansyah et al., Tafsir Kontekstual dan Eksistensi Perempuan serta Implikasinya terhadap Karya H. Muh. Shaleh dan H. Khairuddin (Guru Sultan Tsafiuddin II Sambas) (Pontianak: STAIN Pontianak, 2012). 4 5 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 61 Muhammad Lutfi Hakim al-mīrāth.9 For most Muslim jurists from Sunnī schools, the provision of the inheritance distribution system is absolute, as very detailed described in Sharia. Some scholars, however, oppose the view and argue that the provisions in the ‘ilm al-farā’iḍ are the product of a complex social history spanning three centuries.10 Coulson argues that the Muslim community’s Islamic inheritance system reinforces the customary law system that the Prophet Muhammad tried to reform after the revelation of the Quranic verses on inheritance.11 Kimber, for example, argues that the inheritance system closer to the Quran is those of Shī’ī than Sunnī.12 However, Muslim societies practised this Sunnī inheritance system for almost one millennium (from the 9th to the 19th century) without any revision. In the early 19th century, the ‘ilm al-farā’iḍ began to be reformed by several Muslim countries due to the Muslim extended family system’s disintegration into a nuclear family. In Wahib’s notes, Sudan was the first country to reform its Islamic law of inheritance by Judicial Circular No. 24 in January 1921 on missing persons (mafqūd). Sudan then issued Judicial Circular No. 26 on 3 February 1925 regarding a husband’s or wife’s right to inherit all of the testator’s assets if there are no other living heirs. In the same year, Egypt also issued Judicial Circular No. 28 of 1925 regarding a widow’s right to inherit all assets through restitution (rādd) if there are no other living heirs. Egypt codified the provision regarding widows’ rights in Law No. 77 of 1943 on inheritance.13 These reforms by Sudan and Egypt inspired several other Muslim countries, including Indonesia, to do the same with their inheritance systems. In Indonesia, the Islamic inheritance law was only codified in 1991 through Presidential Instruction (Inpres) concerning the Compilation of Islamic Law (Kompilasi Hukum Islam, KHI). Before 1991, the Muslim community distributed their inheritances based on laws Wahbah Al-Zuḥailī, Al-Fiqh al-Islāmī wa Adillatuhu, vol. VIII (Beirut: Dār al-Fikr, 1985), p. 243. 10 David S. Powers, Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance (Bekerley: University of California, 1986), pp. 13-4. 11 N. J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1978), p. 220. 12 Richard Kimber, “The Qur’anic Law of Inheritance”, Islamic Law and Society, vol. 5, no. 3 (1998), pp. 291-325. 13 Ahmad Bunyan Wahib, “Reformasi Hukum Waris di Negara-Negara Muslim”, Asy-Syir’ah: Jurnal Ilmu Syari’ah dan Hukum, vol. 48, no. 1 (2014), pp. 29-38. 9 62 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance established by the Islamic Kingdoms in the Archipelago14 and the rules that were alive in the community. The provisions for the distribution of inheritance are scattered throughout the Archipelago in the form of manuscripts; some have been preserved in electronic media, while others remain untouched, scattered amid society or stored in local and private libraries and collections.15 There are more than 26,000 religious manuscripts from the Archipelago preserved at Leiden University, around 10,300 similar manuscripts at National Libraries, and thousands of other Archipelago manuscripts stored in local libraries in several countries, including the Netherlands, Germany, Malaysia, England, France, Russia, et cetera.16 However, only a few scholars have reviewed the manuscripts on Islamic inheritance. Alifudin, Chaer, and Suud17 discussed the Islamic law of inheritance in Buton in the Kitāb Farā’iḍ by Sultan Muhammad Idrus Qaimuddin. Harahap and Syarif studied the manuscripts of al-Qawānīn al-Shar’iyyah and Shamsūrī fī al-Farā’iḍ along with 11 other writings of Sayyid Usman bin Abdullah,18 which became references to qādhi in the Religious Courts (Mahkamah Shar’iyyah) and the codified Islamic family law in the KHI (Kompilasi Hukum Islam).19 Yakin examined the LOr5626 manuscript from the Register of the Qādhi Court of the Banten Sultanate 1527-1813 about the case of inheritances by Kiyahi Pēqih Najmuddin based on classical fiqh.20 Anis Masykhur, “Titik Singgung Hukum Islam dengan Hukum Adat pada Naskah Perundang-Undangan Kerajaan Islam di Nusantara”, Al-Manahij: Jurnal Kajian Hukum Islam, vol. 14, no. 2 (2020), p. 296. 15 Ridwan Bustamam, “Eksplorasi dan Digitalisasi Manuskrip Keagamaan: Pengalaman di Minangkabau”, Jurnal Lektur Keagamaan, vol. 15, no. 2 (2017), p. 447. 16 Henri Chambert-Loir and Oman Fathurahman, Khazanah Naskah: Panduan Koleksi Naskah-Naskah Indonesia Sedunia – World Guide to Indonesian Manuscript Collections, 1st edition (Jakarta: Yayasan Obor Indonesia, 1999), pp. 203-43. 17 Muhammad Alifudin, Moh. Toriqul Chaer, and Fitriah M. Suud, “Contextualization of the 19th Century Islamic Law in Buton (A Study on Sultan Muhammad Idrus Qaimuddin Thought about Mawaris)”, Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan, vol. 20, no. 2 (2020), pp. 277-8. 18 Christiaan Snouck Hurgronje, Verspreide Geschriften (K. Schroeder, 1923), p. 285. 19 Radinal Mukhtar Harahap and Fajar Syarif, “Jâwî Reference in Islamic Law Compilation: An Introduction to al-Qawânîn al-Syar‘iyyah by Sayyid Usman”, Journal of Contemporary Islam and Muslim Societies, vol. 4, no. 2 (2021), p. 185. 20 Ayang Utriza Yakin, “The Register of the Qadi Court ‘Kiyahi Pĕqih Najmuddin’ of the Sultanate of Banten, 1754-1756 CE.”, Studia Islamika, vol. 22, no. 3 (2015), p. 462. 14 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 63 Muhammad Lutfi Hakim The present article examines Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ written by Mundu in 1941. This manuscript reveals the Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom from 1907-1950 and the Kubu Court Judge from 1951-1957. The manuscript includes charts of asset distribution that make beginners easier to learn ‘ilm al-farā’iḍ. According to Masykur, one of the factors for many religious texts in the Archipelago, including the manuscripts in this paper, applied the Dutch government’s theory of receptie based on the recommendation of Hurgronje. Although Indonesian Muslim scholars claimed that the receptie theory harmed Islamic law,21 the colonial policy positively impacted manuscript preservation. The Dutch government seemed to increase further the copying and codification of the manuscripts scattered throughout the Archipelago. 1. Biography of Ismail Mundu The full name of Ismail Mundu was Sheikh Ismail ibn Abdul Karim al-Bugisiy al-Puntiany. His father is a murshid of the Qadiriyyah tariqat, who was of ethnic Bugis, while his mother is Zahra (Wak Soro) from the Kakap Region of West Kalimantan. Mundu was born in the Sungai Kakap area of Kubu Raya District, West Kalimantan, Indonesia, in 1287 AH (1870 AD), as a descendant of King Suwito from the Kingdom of Gowa in South Sulawesi. Islam became the official religion in the Kingdom of Gowa during the reign of I Mangarangi Daeng Manrabia, who later became Sultan Alauddin. Previously, Mangku Bumi Malingkang Daeng Manyanri, whose title was Sultan Abdullah Awalul Islam, had also embraced Islam. He was appointed Mangku Bumi of the Kingdom of Gowa because when he was crowned King of Gowa, Sultan Alaudin was seven years older. According to Abbas, as quoted by Baidhillah Riyadhi, from this Islamic empire, King Sawitto, the ancestor of Mundu, was born.22 In his childhood, Ismail Mundu was often just called Mundu. In his youth, too, he appeared to be an obedient child in practising Islamic teachings. At seven, Mundu studied with his uncle (his mother’s younger brother) named H. Muhammad bin H. Ali. Given his intelligence, Mundu succeeded in completing the recitation of the Quran perfectly within Euis Nurlaelawati, Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts (Amsterdam: Amsterdam University Press, 2010), pp. 47-8. 22 Riyadhi, Guru Haji, p. 16. 21 64 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance seven months. Furthermore, Sheikh Abdul Karim (Mundu’s father) sent him to study religion with a great scholar in his time called H. Abdullah ibn Salam, also known as H. Abdullah Bilawa. He had the title “Ulama Batu Penguji” and lived in Sungai Kakap Village, Pontianak District. After H. Abdullah ibn Salam died, Mundu continued to study religion with Sayyed Abdullah Azzawawi, Tuan Umar Subawa, and Tuan Makabaro (Puang Lompo).23 At the age of 20, Mundu performed the Hajj and studied with Arab and Malay scholars in the Holy Land. After acquiring enough knowledge, Mundu then returned home around 1904 and practised the knowledge he had received from his teachers. Three years later, in 1907, Mundu gained King Syarif Abbas’s trust (the sixth king in power from 1900-1911) to serve as a mufti. After the end of the Kubu Kingdom, which integrated into the Republic of Indonesia in 1951, Mundu was once again trusted to be the Judge of the Kubu Court.24 2. Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ: Physical and Substantive Descriptions This manuscript is entitled, “Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ.” The title of the manuscript is printed on the cover and page of the opening remarks. The manuscript was written on 2 Zulhijjah 1360 AH/20 December 1941 AD. The script uses the Jawi alphabet, also known as the Arab Malay alphabet. The manuscript does not have a number, and it comes from the Teluk Pakedai Region, Kubu Raya District, West Kalimantan Province. The original manuscript owner was Ummi Albah, while the photocopied version is owned by H. Rifa’i Abbas, which has been preserved neatly and well in the storage cabinet of each owner of the manuscript. The manuscript is 30.4 cm long and 20.4 cm wide, with the paper’s width containing the written contents measuring 17.2 cm. Its thickness measures 0.4 cm. The top margin is 2.1 cm, the bottom margin is 2.2 cm, the right margin is 1.95 cm, and the left is 1.3 cm. The material used as a base for script writing is plain paper. The manuscript cover is brown, and the contents are on cream-coloured paper. The script is written using black ink. The letter size is ± 4 mm with the khāṭ naskhī font mixed with khāṭ riq‘ah. It has 24 pages. The script content has a maximum of 30 lines and a minimum of 27 lines, one title page, one page of opening 23 24 Ibid., pp. 19–22. Jabbar, Sejarah Kerajaan, pp. 49-51. Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 65 Muhammad Lutfi Hakim remarks, one page of closing remarks, and two pages of male and female inheritance calculation charts. The manuscript was written by hand. It was written recto and verso with the writing placement from right to left. It includes page numbers located in the top-middle of the pages. Whereas the cover, introduction, and inheritance division charts consist of two sheets that do not have page numbers.25 The original manuscript’s condition remains relatively good. The manuscript’s physical condition is still intact. It is still clearly readable, although some words and letters are illegible because termites damaged the physical text. Charts accompany the manuscript’s contents to make it easier for readers to understand. Additionally, two pages of charts explain the division of assets for each heir. C. Principles of Islamic Inheritance Law and Distribution Mechanism Charts: Mundu’s Practical Contribution This sub-discussion describes the basics of the Islamic law of inheritance, including the rights to inheritance, various heirs and their respective divisions, and methods for determining the origin of the issues. The explanation of the basics of the Islamic law of inheritance in this sub-discussion clarified the inheritance distribution mechanism described in detail by Mundu and practised in his manuscript’s chart form. In addition, this sub-discussion also looks at Mundu’s tendency to be of the Shāfi‘ī school of thought. Before dividing the dead’s property among the heirs, there are three obligations related to inheritance: first, the cost of caring for the corpse, including white cloth covering the corpse, baths, carrying, and burial; second, payment of debts; and third, fulfilling the will of the deceased with a maximum of one-third (1/3).26 In the manuscript, Mundu criticised most of the heirs who received an inheritance but did not care about matters related to the deceased’s obligations.27 Ibid., p. 57. The most famous reference describing a maximum of one-third for a will is the hadith narrated by Sa‘ad bin Abī Waqqas. For further discussion on this issue, see: Asep Sugiri, “Wasiat untuk Ahli Waris: Kritik Ekstern dan Intern Autentisitas HadisHadis Larangan Wasiat untuk Ahli Waris”, Al-Jami’ah: Journal of Islamic Studies, vol. 42, no. 2 (2004), pp. 467-70; Samsul Hadi, “Pembatasan Wasiat sebagai Bentuk Keadilan Hukum Islam”, Al-Ahwal: Jurnal Hukum Keluarga Islam, vol. 9, no. 2 (2017), p. 175. 27 Ismail Mundu, Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ (Teluk Pakedai, 1941), see the muqaddimah. 25 26 66 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance Regarding the third obligation, the deceased’s will, several Muslim countries have made modifications in the form of wasiat wājibah.28 In Indonesia, this wasiat wājibah applies to parents of adopted children. Meanwhile, countries like Egypt (1946), Syria (1953), Morocco (1958), and Iraq (1963) applied wasiat wājibah for granting grandfather’s inheritance to orphaned grandchildren sharing with other heir’s kids. However, Syria and Morocco limit it to the grandsons of a son.29 In Pakistan and Bangladesh, bequeathing a grandfather’s inheritance to orphaned grandchildren is known as a substitute heir, directly putting the orphaned grandchildren in their parent’s place.30 In Indonesia, the transfer of such property is known as the substitute heir (plaatvervuling). Mundu divided the heirs based on gender into two, namely male and female heirs. Male heirs are 15 people, namely sons, father, husband, grandsons, grandfathers, siblings, consanguine siblings, uterine siblings, sons of siblings, sons of consanguine siblings, uncles, consanguine uncles, sons of uncles, sons of consanguine uncles, and mu‘tiq.31 Meanwhile, there are ten female heirs: daughters, mother, wife, granddaughters, grandmother from the father’s side, grandmother from the mother, sisters, consanguine sisters, and mu‘tiqah.32 If all heirs are still alive, only five people receive the inheritance, biological children, father, mother, husband, and wife.33 D. Mundu’s Characteristics and Orientation in the Islamic Law of Inheritance The thought of Mundu on Islamic law of inheritance clearly inclined toward the Shāfi‘ī school. This orientation can derive from the Wasiat wājibah is an action taken by a judge as a state apparatus to force a deceased person’s compulsory will, given to parents and adopted children with a maximum of one-third of the inheritance; Ahmad Rofiq, Hukum Islam di Indonesia (Jakarta: PT RajaGrafindo Persada, 2000), p. 462. 29 J. N. D. Anderson, “Recent Reforms in the Islamic Law of Inheritance”, International & Comparative Law Quarterly, vol. 14, no. 2 (1965), pp. 358-9. 30 Lucy Carroll, “Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan”, Islamic Law and Society, vol. 5, no. 3 (1998), p. 446. 31 Mundu, Majmū‘ al-Mīrāth, p. 24. 32 Ibid. 33 Ibid., p. 3; It is claimed that patriarchal culture much influences the Islamic law of inheritance, which is more beneficial to male heirs than female heirs in all matters. However, the Islamic law of inheritance pays attention to women’s rights; Jasni bin Sulong, “Inheritance Law for Women: Islamic Feminism and Social Justice”, Journal of Islamic Studies and Culture, vol. 3, no. 1 (2015), pp. 11-2. 28 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 67 Muhammad Lutfi Hakim emphasis that he delivered himself on the manuscript’s first page. I call this treatise Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ, on the madhab of our Imām Shāfi‘ī, may Allah be pleased with him, to make it easier for the beginners to understand the problem and explain to others. I hope Allah Ta’ala will give His blessings by keeping me and those who read it from Satan that is condemned.34 The Shāfi‘ī influence on Mundu’s work appears in his explanation of the rights to inheritance, heirs categorisation, furūḍ al-muqaddarah, methods of determining the origin of the problem, and some cases of dividing an inheritance. Such influence became more clear when Mundu positioned himself in the discourse on several issues of inheritance division with various opinions from scholars. The discussion of the rights attributed to the deceased’s inheritance showed the first clue that Mundu based his concept on the Shāfi‘ī school, which included the cost of caring for the corpse, paying the debt, and fulfilling the deceased’s will with a maximum limit of one-third (1/3).35 In the case of granting the inheritance to heirs with a provision of a maximum of 1/3 of the inheritance, only Egypt, Sudan, and Iraq allow the granting without the consent of all heirs.36 Whereas Indonesia allows it, provided that there must be agreement from all heirs. Shāfi‘ī scholars agreed that the costs of caring for bodies, paying debts, and fulfilling the will are rights to the inheritance.37 These scholars differed on the details of the body’s treatment, the heirs’ obligations to pay off debts, and the order of the rights to prioritise over the others. The majority of the scholars of Mālikī, Shāfi‘ī, and the famous views of the Hanafī school argue that the debt obligations of the estate should be the first to pay. On the contrary, the Hanbalī school and one of the Hanafī school’s views put corpse care as the first right to fulfil immediately. Mālikī and Shāfi‘ī schools argue that virtue is made in the context of how the inheritance is spent and does not intend to slow down the handling of the corpse. If a person dies and does not leave any estate behind, Mundu, Majmū‘ al-Mīrāth, p. 1. Ibid. 36 Sri Wahyuni, “Pembaharuan Hukum Keluarga Islam di Negara-Negara Muslim”, Kosmik Hukum, vol. 11, no. 1 (2011), p. 218. 37 Andi Asdar Yusuf, “Controversy of Islamic Law on the Distribution of Inheritance to the Heirs of Different Religion”, Hunafa: Jurnal Studia Islamika, vol. 14, no. 2 (2017), pp. 383-5; Salako Taofiki Ajani, “The Value of Islamic Inheritance in Consolidation of the Family Financial Stability”, IOSR Journal of Humanities and Social Science, vol. 8, no. 3 (2013), p. 17. 34 35 68 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance then the cost of managing the corpse becomes the obligation of the heir who can afford it. If no heir can afford it, it charges all people with the obligation of farḍu kifāyah.38 Another case showing Mundu’s leaning toward the Shāfi‘ī school is his discussion of furūḍ al-muqaddarah. The inheritance division may use substantial portions (furūḍ al-muqaddarah), ‘aṣābah, and dhawī al-’arḥām.39 Furūḍ al-muqaddarah refers to the parts that the Shariat have determined for certain heirs in the division of inheritance. These portions are what the heirs will receive based on the relationship of kinship. There are six required compulsory and specified divisions in the Quran, not to be added nor deducted,40 whether it is a 1/2, 1/3, 1/4, 1/8, 2/3, or 1/6 of the property. In addition to inheriting estate assets by obtaining a definite share, heirs can also inherit by receiving the remaining portion (‘aṣābah), which starts from the order of nasab. In the case of no heir, the inheritance shall be for the bait al-māl if it runs based on the Shariat. Otherwise, the inheritance should be given to a trustee who can distribute it on the path of virtue for all Muslims or the poor.41 Mundu’s opinion concerning giving the inheritance to the bait almāl is in line with the thought of Imām Shāfi‘ī, Imām Mālik, and Zaid ibn Thābit, and Ibn ‘Abbas. They argue that if a person dies leaving the inheritance behind and there is no heir in the category of aṣḥāb al-furūḍ and ‘aṣābah, then the legacy shall be for bait al-māl to for the benefit of the Muslim community.42 The provision is also adopted in Article 191 of the Indonesian Compilation of Islamic Law, specifically that if the testator does not leave anything assets to the heirs as stipulated in Article 174 paragraph (1), then the estate or the remaining estate based on the decision of the Religious Court shall be handed over to the bait al-māl for the benefit of Islam and public welfare. In contrast to Mundu’s opinion, several countries, including Egypt, Mohd Yusuf Mohd Ali and Ibrahim Basri, “Kedudukan Harta Sepencarian Sebagai Hak Harta Peninggalan Dalam Perundangan Islam”, presented at the Seminar Antarabangsa Perundangan Islam dalam Masyarakat Kontemporari 2017 (ISLAC 2017), p. 1220. 39 M. Zubair et al., “The Laws of Inheritance in Islam”, Journal of Basic and Applied Scientific Research, vol. 4, no. 8 (2014), p. 86. 40 Mundu, Majmū‘ al-Mīrāth, pp. 3-4. 41 Ibid., p. 3. 42 Further discussion on the arguments of Shāfi‘ī to give the inheritance to bait al-māl, not to dhawī al-’arḥām, see: Beni Ahmad Saebani, Fiqh Mawaris, (Bandung: Pustaka Setia, 2009), p. 183. 38 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 69 Muhammad Lutfi Hakim Sudan, and Tunisia, have promulgated legal rules that provide residual of the estate (rādd) to the aṣḥāb al-furūḍ.43 Article 30 paragraph (2) of Law No. 77 of 1943 concerning inheritance (qānūn al-mīrāth) of Egypt and the Circular of Law No. 28 of 1925 of Sudan provides remaining estate to husbands or wives, provided that there are no aṣḥāb al-furūḍ and dhawī al-’arḥām. Additional Regulation (1959) Article 143 paragraph (1) of the Tunisian Family Law of 1956 grants the remaining estate to the aṣḥāb al-furūḍ according to their right. In Article 143, paragraph (2) of the Family Law of 1956, Tunisia gives the remaining estate to orphaned grandchildren, even though male heirs who receive the ‘aṣābah bi al-nafs are still alive, such as male siblings, uncles, or the public treasury. In addition, Mundu also discussed some specific, unique cases relating to the Islamic inheritance law. Mundu discussed in detail along with examples of cases in the division of inheritance he made in the form of charts, such as the cases of gharrawain or ‘umariyatain, ḥimāriyyah or musyārakah, akdāriyah, minbāriyah, yatimiah, khuntha, munāsakhah, and the case of inheritance in which two testators died simultaneously. In classical literature, the debate on such cases has been very dynamic. In his manuscript, Mundu also discussed them, demonstrating the inclination of his thought aligned with the Shāfi‘ī School. The author picks the cases of gharrawain and khuntha to discuss here as two examples. 1. The Case of Gharrawain In the gharrawain case, the heirs consisted of a father, mother, and husband or wife. Generally, there are two notable opinions among scholars in resolving this case. The first was the method Ibn ‘Abbas,44 adopted by Dāwud al-Ẓāhirī and his disciple Ibn Hazm. According to this opinion, the husband gets 3/6, the mother still receives 2/6, and the father receives 1/6 from all inheritance. As a result, the mother receives two portions, while the father receives one portion. This argument comes from the literal meaning of Sūrah Al-Nisā’ [4:11] and the hadith stating that the mother is entitled to three times as much as the father in accepting goodness.45 The second was from ‘Umar ibn Khaṭṭāb, Zaid ibn Thābit, ‘Uthman ibn ‘Affān, Ibn Mas‘ūd, and ‘Ali ibn Abī Ṭālib, adopted by Wahib, ‘Reformasi Hukum Waris’, pp. 46-7. Kimber, ‘The Qur’anic Law of Inheritance’, p. 308. 45 Ibn Hazm, Al-Muḥallā (Mesir: Matba‘ah al-Jumhuriyyah Al-‘Arabiyah, 1970), pp. 326–30. 43 44 70 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance jumhūr ‘ulamā’, including Imām Shāfi‘ī. According to this opinion, the husband receives 3/6, the mother receives 1/6, and the father receives 2/6 from all inheritance. The majority of scholars interprets the phrase fa liummihi thuluth as the mother gets 1/3 of the residual that is entitled to be inherited by the two heir parents, not 1/3 of all inheritance. Because, if interpreted as 1/3 of the estate, then the phrase wa wārithāhu abawāhu is rendered meaningless. Thus, the comparison of the portions received by the father and the mother remains consistent 2:1, according to the principle of li al-dhakari mithl ḥaẓ al-unthayain.46 Of these two opinions, Mundu adopted the second opinion, which bequeaths the mother 1/3 of the residual. This second opinion indicates the inclination of Mundu’s thought to resolve the case in the Shāfi‘ī school. This first case settlement corresponds to Ibn ‘Abbas based on the Quran and the hadith, and the settlement had no problems. The husband gets 3 portions (1/2 of 6), the mother receives 2 portions (1/3 of 6), and the father gets 1 portion of the residual. However, when a comparison is made between the father and the mother’s part, there is a sense of irregularity. The mother receives twice the father’s portion (the mother gets two portions, while the father one portion). These irregularities are due to a violation of principle 2:1 (li al-dhakari mithl ḥaẓ al-unthayain).47 To overcome these irregularities, Umar commented that the mother’s furūḍ of 1/3 was not taken from the entire estate but from the residual after being allotted to the husband. The husband gets three portions (1/2 of 6), and the residual is three portions. The mother gets one portion, 1/3 of the residual (3). While the father gets two portions of the residual after the mother’s portion has been allotted. The view of the majority, including the Shāfi‘ī School, was adopted by Mundu in his manuscript and codified in Article 178 paragraph (2) of the Compilation of Islamic Law. According to Wahib,48 giving the portion of the mother Ratu Haika, “Bagian Ayah dan Saudara dalam Kewarisan Islam di Indonesia (Perspektif Fiqh, KHI dan Prakteknya di PA dan Masyarakat)”, Mazahib, vol. 10, no. 2 (2012), p. 341. 47 The father’s necessity to receive two portions of what the mother receives follows the principle of li al-dhakari mithl ḥaẓ al-unthayain, as in the Shāfi‘ī School and adopted to the Compilation of Islamic Law; See Andree Feillard, “Indonesia’s Emerging Muslim Feminism: Women Leaders on Equality, Inheritance and Other Gender Issues”, Studia Islamika, vol. 4, no. 1 (2014), p. 84; Muhammad Mahsus, “Tafsir Kontekstual dan Eksistensi Perempuan serta Implikasinya terhadap Penyetaraan Bagian Waris Laki-Laki dan Perempuan”, Journal of Islamic Law (JIL), vol. 1, no. 1 (2020), pp. 25–44. 48 Wahib, “Reformasi Hukum Waris”, p. 34. 46 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 71 Muhammad Lutfi Hakim to receive the portion of thuluth al-bāqy is the ijtihād of the Companions to find a new law that is more in line with the demands of society at that time. 2. The Case of Khuntha Mundu also explains the case of al-khuntha mushkil49 in his manuscript. Generally, there are three opinions on how to resolve this case. The first argument is presented by Imām Abū Ḥanīfah, Imām Muḥammad, and Abū Yūsuf. This opinion states that the heirs of khuntha have received the least part of the two possibilities (male or female), while the other heirs have received the majority of the estate assets. The second argument is explained by Shāfi‘ī Scholars, Abū Dāwud, Abū Thaur, Ibn Jarīr al-Ṭabbarī, and Ḥanbali Scholars. This opinion states that a khuntha and the heirs can receive the inheritance and are processed with one of the two worst possible possibilities. The rest is suspended until there is clarity about their status, whether they are male or female. The third argument is explained by Mālikī, some of Ḥanbali, Zaidiyyah, and some Shia Imāmiyyah. This opinion states that the heirs of khuntha have received part of the two possibilities (male or female) and other heirs.50 Of these three opinions, Mundu adopted the second. This second opinion indicates the inclination of Mundu’s thought to resolve the case in the Shāfi‘ī School. For more clarity on the second opinion, Mundu explained it with an illustrator figure in his manuscript, provided with an example. If the testator leaves behind a husband, a daughter, and a khuntha child, for example, the husband gets 1/4, and the daughter and the khuntha child receive an ‘aṣābah, supposed that the khuntha child is male; then the husband gets two parts, the daughter gets two ports, and the khuntha gets 4 parts. If supposed that the khuntha child is female, the husband gets 1/4, and the daughter and the khuntha (female) child share 2/3; it means that the husband gets two portions, while the daughter and the khuntha child (female) receive three portions each. Based on the opinion of the school of Shāfi‘ī, of the two possible portions allocated to the khuntha child, the minor part of the khuntha child is that the khuntha Al-khuntha has no single, distinct sex identity. In the context of legal certainty, the ulamas divide khuntha into two: mushkil and ghairu mushkil, based on whether the sexual, physical sign may be identified or not; Teungku Muhammad Hasbi Ash Shiddieqy, Fiqh Mawaris: Hukum Pembagian Warisan Menurut Syariat Islam (Semarang: Pustaka Rizki Putra, 2010), p. 250. 50 Muḥammad Alī Al-Shabūnī, Al-Mawārīth fī al-Sharī’ah al-Islāmiyyah (Beirut: Dār al-Kitāb al-Ilmiah, 1995), pp. 260–2. 49 72 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance child is allotted the amount of the daughter. Each heir’s portion is as follows, the husband gets two portions, the daughter receives two parts, and the khuntha child gets three portions. The remaining single portion is then suspended until the khuntha child is clear of their status, whether male or female. This division is the method described by Mundu in his manuscript, which indicates his thoughts on resolving this case in the Shāfi‘ī School. From the described above, Mundu preceded the principle of 2:1 than the heirs’ provisions and chose the middle ground among the parties concerned. Related to this, Powers argued that the Sunnī Scholars, including Imām Shāfi‘ī, tended to defend the principle of 2:1 (li al-dhakari mithl ḥaẓ al-unthayain) and that the principle could not be defeated by the particular rules contained in the verses of inheritance.51 Kimber also argues that the specific regulations set forth in the verses of inheritance serve to qualify and mitigate the customary system of agnatic succession.52 E. Concluding Remarks The manuscript, entitled “Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ,” was written by Ismail Mundu on 20 December 1941. The manuscript described the Islamic law of inheritance that Mundu applied when he served as Mufti in the Kubu Kingdom and Judge of the Kubu Court. It discusses the rights to inheritance, various heirs, furūḍ al-muqaddarah, methods for determining the origin of the problem, and cases in the inheritance division. The work provided charts containing concise formulas that can be used as a guide for facilitating beginners in learning the Islamic law of inheritance. The provision of charts in the manuscript revealed Mundu’s anxiety about the difficulties encountered by his students in understanding the Islamic inheritance-sharing mechanism. Mundu’s thought on the Islamic law of inheritance was based on the Shāfi‘ī school. Its inclination is apparent when Mundu positioned himself to discuss several cases of Islamic inheritance, which contained differences of scholars. This paper affirms the existing theory that the school of thought in the Islamic law used by Muslims in the Indonesian Archipelago, including the people of Kubu Raya at that time, was of the Shāfi‘ī school. The difference between the Islamic law of inheritance in this manuscript and the Shāfi‘ī school of fiqh common literature is 51 52 Powers, Studies Qur’an and Hadith, pp. 57-66. Kimber, “The Qur’anic Law of Inheritance”, p. 293. Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H 73 Muhammad Lutfi Hakim that there are practical charts containing concise formulas to calculate inheritance division and make it easier for beginners to learn the Islamic law of inheritance. Acknowledgment The author would like to thank Rifa’i Abbas (one of Ismail Mundu’s students) and Baidhillah Riyadhi for their willingness to provide the author with the manuscript copies. 74 Al-Jāmi‘ah, Vol. 61, No. 1, 2023 M/1444 H Ismail Mundu on Islamic Law of Inheritance BIBLIOGRAPHY Ajani, Salako Taofiki, “The Value of Islamic Inheritance in Consolidation of The Family Financial Stability”, IOSR Journal of Humanities and Social Science, vol. 8, no. 3, 2013. Ali, Mohd Yusuf Mohd and Ibrahim Basri, “Kedudukan Harta Sepencarian Sebagai Hak Harta Peninggalan Dalam Perundangan Islam”, in Seminar Antarabangsa Perundangan Islam dalam Masyarakat Kontemporari 2017 (ISLAC 2017, UniSZA, 2017. Alifudin, Muhammad, Moh Toriqul Chaer, and Fitriah M. Suud, “Contextualisation of the 19th Century Islamic Law in Buton (A Study on Sultan Muhammad Idrus Qaimuddin Thought about Mawaris)”, Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan, vol. 20, no. 2, 2020. 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