IOSR Journal of Humanities And Social Science (IOSR-JHSS)

Volume 26, Issue 11, Series 7 (Nopember. 2021) 42-46

e-ISSN: 2279-0837, p-ISSN: 2279-0845.
www.iosrjournals.org

The Value of Justice in the Distribution of Inheritance for

Substitute Heirs in Islamic Inheritance Law

Mawalid Istiqlal1, Ma’ruf Hafidz2, Abdul Qahar2& Zainuddin2

1
Doctor of Law Science, Indonesian Muslim University
2
Faculty of Law, Indonesian Muslim University

ABSTRACT
This study aims to analyze the nature of the distribution of inheritance for the successor heirs. This research is
library research using normative juridical research methods. The results of the study show that the nature of the
distribution of inheritance for replacement heirs is a solution to the injustices that have occurred so far due to
the implementation of inheritance laws that tend to be patrininealistic. The existence of a substitute heir can
provide justice to the heirs and humanity where an unnatural person is punished not to get an inheritance from
his grandfather just because his parents have died first.
KEYWORDS: Division; Treasure; Heir
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Date of Submission: 14-11-2021 Date of Acceptance: 29-11-2021
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I. INTRODUCTION
Inreality, Muslims constitute the majority in this country. Therefore, it is natural that the expectations
of Muslims, in general, make Islamic law a positive law for Indonesian Muslims. This is based on the way of
thinking, the outlook on life and the character of a nation reflected in its culture and laws .[1] One of the Islamic
laws that are still valid and enforced in Indonesia, especially for Muslims, is the Law of Inheritance or what is
known as Faraid. Islamic inheritance law is considered an obligation that must be carried out by every Muslim.
It is considered as compulsory law (dwingend Recht)which is a law that applies absolutely and standardly.[2]
There are often problems in Muslim society regarding the distribution of inheritance (mirath). This
happens because in the Qur'an there are no clear provisions regarding certain issues, such as the granting of
inheritance rights to grandchildren whose parents died before their grandfather, and the amount of the share
received by Ahl Al-Furud is greater than the property that is received by Ahl Al-Furud. distributed (a state of
property deficit). The provisions regarding the matter were not explained in detail, which eventually led to
differences of opinion. Jumhur ulama stated that the grandson had no right to inherit his grandfather's property
because it was hindered by his parents' relatives.[3] Meanwhile, to solve the problem of the property deficit, a
proportional reduction was made to all heirs.
The problem of inheritance in Islam is a problem that can be said to be easy and also difficult because
in Islamic inheritance law the parts of each heir have been determined. It's just that this inheritance can be
determined based on deliberation within the family. Heirs (warits) are people who will inherit the inheritance of
muwarris because they have inherited causes.[4]
The principle of justice in inheritance law is something that is very interesting and becomes a subject
of discussion that continues to be discussed by legal scholars. Especially, according to Ahmed E. Souaiaia,
when the law of inheritance is linked to its legal propositions and the practice of its implementation.[5] There are
even those who question the existence and manifestation of the principle of justice in inheritance law. Tamar
Ezer, for example, argues that justice in inheritance law cannot be seen clearly in every provision of inheritance
law applied to Muslims. According to him, this can be seen in the discriminatory provisions for some heirs
regarding the size of their share, because according to him, the inheritance law often makes female heirs the
second class.[6] When viewed from the principles used in Islamic inheritance law, gender classification is not
included in it at all. The principles used in inheritance law are based on the principle of kinship and marriage;
the principle of gender neglect (that is, not to question the characteristics of male or female, fatherly or
motherly); heirs up and down (Al-Usul and Al-Furu'); there is no inheritance rights for brothers and sisters due
to the presence of both parents even though they occupy the mother's place with rights from 1/3 to 1/6 of the
share, and the male heirs receive a multiple of the female share. [7]
The study of substitute heirs in Islamic inheritance law is new and was not previously known by jurists
in classical fiqh literature, this provision is a breakthrough in terms of resolving the inheritance of children

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The Value of Justice in the Distribution of Inheritance for Substitute Heirs in Islamic Inheritance Law
(read: grandchildren) from heirs (fathers) who first died of the heir (grandfather), according to the jurists of the
school of thought the child is classified in the position of zaw Al-Arham which according to the provisions of
syara' (in this case Syafi'ifiqh) that the child (read: grandson) whose father died first from the heir ( grandfather)
cannot obtain and receive an inheritance.
In reality, it is often seen that children whose fathers died before their grandfathers lived in poverty,
while their father's brothers lived insufficiency. This condition causes the orphan to suffer because of the loss of
his father, as well as lose the right to inherit due to being veiled by his father's brothers. Indeed, among the
many cases, there are several dispensations where a grandfather makes a will for an orphaned grandson. But
often he died before doing so. Seeing this fact, the legislation in several Muslim countries no longer follows the
rules of the classical school of jurisprudence, which does not question the case in the ruling of the school, but
several changes have been made, especially regarding the rights of children whose father died first from their
grandfather.
Seeing this fact, the legislation in several Muslim countries no longer follows the rules of the classical
school of jurisprudence, which does not question the case in the ruling of the school, but several changes have
been made, especially regarding the rights of children whose father died first from their grandfather.
The motivation for the legal institutionalization of substitute heirs in the inheritance law of the
Compilation of Islamic Law is based on a sense of justice and humanity. This is because it is inappropriate and
unfair and inhuman to punish a person for not being entitled to receive an inheritance that should have been
obtained from his father, just because his father died earlier than grandfather by chance. Especially if the fact is
that when the grandfather died, his children were all rich and established, on the other hand, the grandson was
left orphaned, destitute and poor and his right to obtain what should have been his father's right because his
father died first from his grandfather the. Following the demands of the times and the needs of humanity, the
granting of inheritance through a substitute heir institution as contained in the Compilation of Islamic Law is
considered very urgent with the basic concept as the principle of justice and benefit and it is hoped that the
implementation of a substitute heir as contained in the Compilation of Islamic Law will provide very high
Indonesian-style justice, especially to children whose father died first from their grandfather who in the Islamic
inheritance system he will not get an inheritance.

II. RESEARCH METHODS

This research is library research using normative juridical research methods. With this normative
juridical approach, the required data will be examined in the form of theories, concepts and ideas about the
value of equity in the distribution of inheritance for heirs to replace the perspective of the Compilation of
Islamic Law. The theological-normative side lies in the norms of Islamic law (fiqh) which are derived from
revelations from both the Qur'an and the Hadith of the Prophet SAW. Judging from the approach used, this
research can be classified as revelation research. While the juridical-normative side lies in the legal norms that
apply in the Republic of Indonesia, especially the Compilation of Islamic Law.

III. DISCUSSION

In essence, all living creatures will surely experience death. Likewise, humans in time will surely
experience death just like other living creatures. Humans as one of the other legal subjects have rights and
obligations in legal relations. A person as a supporter of rights is from the time he is born and ends when he
dies, even if his interests want to be valid from the time he is in the womb, as long as he is born alive. This
relates to an inheritance that is open at a time, while the person as a potential heir (heir) is still in the womb.[8]
Inheritance law is part of family law which plays an important role, even determines and reflects the
family system that applies in society. Inheritance law is closely related to human life because it is related to
property and human beings with one another. Death or passing away is an event that will be experienced by
someone because death is the end of the journey of human life. If the deceased person known as the heir leaves
the family and property called inheritance, in what way will we settle or divide the inheritance left by the
testator and what law will be applied to divide the inheritance? The law that discusses the transfer of inheritance,
the management and continuation of the rights and obligations of a person who dies, is regulated in inheritance
law.
Islam regulates the provisions for the division of inheritance in detail in the Qur'an so that there are no
disputes between heirs after the death of the deceased regarding the inheritance. Islam also requires and puts the
principles of fairness and justice as one of the joints for the formation and development of a society that can be
enforced. These provisions cannot run effectively and properly if they are not supported by experts who have
deep experience and can implement these provisions properly. [9]
Inheritance has developed very meaningfully for Muslims in Indonesia, and it is caused by the
increasingly complex needs of society and the pattern of thought can change according to the changing times.

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The Value of Justice in the Distribution of Inheritance for Substitute Heirs in Islamic Inheritance Law
Among the Islamic inheritance law that has developed is the existence of a substitute heir, whose application in
Indonesia has been regulated in the Compilation of Islamic Law.
Substitute heirs in Islamic inheritance law to complement existing laws and also aim to seek a sense of
justice for the heirs. Substitute heirs are heirs because of replacement, namely people who become heirs because
their parents who are entitled to inheritance have died before the testator, so he appears to replace them. [10] So
the replacement of a substitute heir needs to be developed in Islamic inheritance law, moreover, this will not
harm other heirs.
On the other hand, the assumption is that Islamic law does not recognize substitute heirs in inheritance
law, this is considered unfair when it is connected to a grandson replacing his parents and occupying the place
of his parents as heirs, nephews replacing his parents and occupying his parents' place as heirs. cousins replace
their parents and take the place of their parents as their uncles, and so on.
Islamic inheritance law has developed very significantly among Muslims in the world without changing
its normative text, especially in Indonesia, the institutionalization and development of Islamic inheritance law
are pursued through national legislation. This can be seen with the promulgation of Law no. 7 of 1989
concerning the Religious Courts and the issuance of Presidential Instruction No. 1 of 1991 known as the
Compilation of Islamic Law (KHI), A. Hussaini said that Islamic inheritance law is a specialist form as a
scientific discipline by always relying on the Qur'an and Al-Sunnah.[11
The replacement heirs mentioned in Article 185 of the Compilation of Islamic Law (KHI) Inspres
number 1 of 1991, are the result of the ijtihad of Indonesian mujtahids, namely a joint decision dated March 21,
1985, the Chief Justice of the Supreme Court and the Minister of Religion of the Republic of Indonesia who
formed a committee to collect materials and design The compilation of Islamic law concerning the law of
marriage, inheritance and waqf will then be used by the Religious Courts in carrying out their duties and
authorities.[12] The essence of the Presidential Instruction is an application of the Qur'an letter An-Nisa verse 59
which states that the sources of Islamic law consist of Kitabullah, As-Sunnah, and Ijtihad. Regarding the
successor of heirs, the Qur'an stipulates it in Surah An-Nisa verse 33 which translates: "For each individual, we
determine as heirs of what is left by parents and relatives. And give to those who have been bound by your oath
a share of them. Verily, Allah is witness to something." In connection with the word of God "for each individual
we assign an heir". This happened at the beginning of Islam. Then this law was enforced.[13]
Al-Bukhari narrated from Ibn Abbas (702, "And for every individual, We make heirs" Mawaliya means
heirs. "And to those who your oath has bound." The meaning is when the Emigrants arrived in Medina, then an
Emigrant inherited the inheritance of the Ansar while his relatives did not get a share, through the brotherhood
created by the Messenger of Allah between them.
The term substitute heir in Dutch is called plaatsvervulling. The replacement of place in inheritance law
is called the replacement of heirs, namely the death of a person by leaving grandchildren whose parents have
died first. This grandson takes the place of his deceased parents to get an inheritance from his grandparents.
The amount of the share that should be received by the grandchildren is the amount that should be
received by their parents if they were still alive. The term replacement of place is only known in western law
(BW) and customary law but is not known in Islamic law.
According to Raihan A. Rasyid, the term substitute heir is distinguished between people who are called
"substitute heirs" and "substitute heirs". According to him, a substitute heir is a person who from the beginning
was not an heir but due to certain circumstances, he became an heir and received an inheritance in the status of
an heir. For example, an heir does not leave a child but leaves a son's grandson or granddaughter. Meanwhile, a
substitute heir is a person who from the beginning was not an heir but due to certain circumstances and certain
considerations may receive an inheritance but remains in the status of not being an heir. For example, the heir
leaves children with grandchildren, both male and female whose parents died before the heir. The existence of
grandchildren here as a substitute for heir.
What is called plaatsvervulling in the Civil Code, mandatory will in Egyptian law and Article 185 of
the Compilation of Islamic Law by Raihan A. Rasyid is called a substitute heir, not a substitute heir. However,
whatever it is called, what is certain in the Compilation of Islamic Law is that the term substitute heir is used.
In the classic Faraid book contained in the book of fiqh, it has been recognized that the heirs who died
earlier than the heirs were replaced by their descendants. However, the term used is not a substitute heir.
Whatever the term is, it is essentially the same, but not absolute. According to him, those who have the position
as Substitute heirs are only descendants of sons who died before the heirs, namely only grandsons and
granddaughters of sons' descendants (Ibnul-Ibni and Bintul-Ibni) who can receive an inheritance from his
grandfather, even that part has been determined with certainty both as ashabah and zawil-furud. For example, if
bintuibnin accepts with a daughter, then he gets a share of 1/6. while the grandsons and granddaughters of the
descendants of daughters (Ibnul-Binti and Bintul-Binti) cannot receive a share of the inheritance from their
grandparents because they are included in DzawilArham.
Inheritance is a rule regarding the transfer of property rights of a person who has died to his heirs. [14] In
Indonesian legal literature, the word “waris” or inheritance is often used. While the word heir is a person who

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The Value of Justice in the Distribution of Inheritance for Substitute Heirs in Islamic Inheritance Law
gets an inheritance or heirloom.[15] Thus, it is clear that inheritance is property given to heirs by the testator
when the testator has died. In the Civil Code (BW) according to Article 830 "Inheritance only occurs when there
is death". Inheritance only occurs when there is death. "Inheritance is a matter of whether and how the various
rights and obligations regarding a person's wealth at the time of his death will pass to someone else who is still
alive." There are three pillars of inheritance, namely Al Muwaris is a person who inherits his inheritance or the
person who inherits his property, Al Waris is an heir who has kinship relations and maurus, namely inheritance
after deducting the cost of treating the corpse, debts and after the will is fulfilled so that it can be understood that
inheritance will take place when the testator dies and the heir leaves the inheritance.[16]
Given this provision, what needs to be considered are the reasons or reasons for receiving an
inheritance and the obstacles to receiving an inheritance. At the time of death, there is a high possibility that at
that time the person who died had assets that according to the Shari'a provided provisions at the time of death
that the transfer of ownership rights had occurred automatically. The majority of phenomena that occur in
society are that the heir has more than one heir so that the distribution must be divided in detail according to the
provisions contained in the text. In Islamic inheritance law, people who are entitled to inherit property are
people who have blood relations with the heirs, namely: children, brothers, fathers, mothers. Second, because of
the marriage bond and the reasons for being prevented from obtaining inheritance, namely killing the heir,
different religions, and apostates.[17]
The process of forming the Compilation of Islamic Law has a close relationship with the current state
of Islamic law in Indonesia. Islamic law as a legal order that is held/observed by the majority of the population
and the people of Indonesia is a law that has lived in society, is part of Islamic teachings and beliefs and exists
in the life of national law and is an ingredient in its guidance and development. [18] While existing Islamic law is
a product or product of the thought of scholars of the second Hijri century or later and some people tend to
maintain classical fiqh and some are trying to offer new ideas because there has been a shift in times as well as
social changes that require a solution. which is then actualized into a new interpretation of the text. The
interpretations are adjusted to the actual conditions so that ijtihad needs to be encouraged. [19] The existence of
the Compilation of Islamic Law is to formulate material law aimed at the Religious Courts by reviewing
classical books, workshops, comparative law and jurisprudence.
Based on the compilation, it can be concluded that this compilation has the position of being a guide for
judges of the Religious Courts in deciding and resolving cases. This reason makes the Religious Courts in
addition to implementing the provisions outlined in the compilation also have a role in developing and
completing them through the jurisprudence made by the judges of the Religious Courts. This emphasizes that
the basis for the Compilation of Islamic Law, on the one hand, judges must be sensitive and explore the legal
values that exist in a society which are expected to be able to make the Compilation of Islamic Law an
achievement that plays a role in efforts to realize the unification of the rule of law in writing.
The concept of successor heirs emerged later and was often linked to Hazairin's ideas. The idea was
then accommodated and contained in the Compilation of Islamic Law, Article 185 which states: "A substitute
heir who dies before the heir can be replaced by his son, except for those mentioned in article 173 who are due
to murder. the successor heirs may not exceed the share of the heirs who are equal to the heirs being replaced. [20]
The use of the word 'can' in this article is seen as a tentative characteristic of replacing the position of heirs. In
other words, the successor heir can replace the position of his parents or not, can get an inheritance or not.
However, in its development, the judges of the Supreme Court considered the position of substitute heirs
important. The explanation from the context of Article 185 paragraph 1 shows that the successor heir here is the
grandson of the heir, in this case, the heir is the grandfather. Article 2 shows that because it must not exceed the
share of the heirs' assets which are equal to those being replaced, in this case, the grandchildren cannot exceed
the inheritance of their parents (father) who died first. While Article 173 is an absolute exception which results
in the loss of the right of grandchildren to inherit due to murder, including apostasy or different religions.
This concept presents several different views from various circles, both academics, practitioners and
scholars who are pro and contra about substitute heirs as part of a legal inheritance according to law. For
example, the debate among the participants of the 2009 National Working Meeting in Palembang, started with a
presentation by Habiburrahman (MA Supreme Court Justice) who criticized Hazairin's idea that Hazairin is a
child of customary law who is the parent of Van Vollenhoven and SnouckHourgronje. In his book, Hazairin
claims to be a mujtahid but his writings do not reflect that of a mujtahid. Therefore, Hazairin was deemed unfit
to interpret the provisions of replacement heirs based on customary law.
Then it reaped various responses by participants, one of which was MukhsinAsyrof, the Head of the
Palembang Religious High Court, who revealed that the provisions for substitute heirs were not stated in fiqh as
in the mandatory will but this was intended to provide justice to the heirs. Meanwhile, KH AzharBasyir, who
chaired the meeting for the compilation of the Islamic Law Compilation, stated that the replacement heir article
was ratified by agreement of the scholars.

IV. CONCLUSION
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The Value of Justice in the Distribution of Inheritance for Substitute Heirs in Islamic Inheritance Law
Thenature of the distribution of inheritance for the successor heirs is a solution to the injustice that has
occurred due to the implementation of inheritance law which tends to be patrininealistic. As a middle ground
between the party that wants change and the party that maintains the establishment, it is natural that the share of
the successor heirs (temporarily) is limited to the share of the relatives being replaced. The replacement system
in Islamic inheritance law is based on the Word of God in Surah An-Nisa verse 33 with the term Mawali,
namely heirs by replacement, namely people who become heirs because there is no longer a liaison between
them and the heir. So the replacement of the heirs should be absolute. This is following the spirit of the Koran
regarding concern for the welfare of orphans and the poor. This is not against the sunnah and meets the socio-
economic conditions of Islam

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[2] Aminullah HM, About the Formulation of Inheritance Law in the Spirit ofIslamic Teachings, in
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Shafi'i, al-Hanbali, Maktabah al -Shuruq al-Dawlah, Cairo, 2008, pp.442-443
[4] Muhammad Ma'shum Zein, FiqhMawarits, Darul Hikmah JlopoTebelBareng, Jombang, 2008, pp.18
[5] Ahmed E. Souaiaia, Contesting Justice: Women , Islam, Law, and Society, p.68
[6] Tamar Ezer, Inheritance in Tanzania: The Impoverishment of Widows and Daughters, The Georgian
Journal of gender and the Law, Vol. 7, 2006
[7] Muhammad Amin Suma, Measuring the Justice of Islamic Inheritance Law through Text and Context
Approach al-Nusus, Ahkam: Journal of Sharia Science, 2012, hlm.214
[8] Subekti, Principles of Civil Law cet. XXXII, Intermasa, Jakarta, 2005, pp.20
[9] Ahmad Rofiq, FiqhMawaris, Raja GrafindoPersada, Jakarta, 2012, p.5
[10] Ahmad Zahari, Islamic Inheritance Law, FH Untan Press, Pontianak, 2008, p. .148
[11] Hussaini A., The Islamic Law of Succession, Darussalam Global Leader In Islamic Books, New York,
2005, pp.13
[12] Abdurrahman, Compilation of Islamic Law in Indonesia, AkademikaPressindo, Jakarta, 1992, pp. 18
[13] Muhammad Naib Ar-Rifai, Ease from Allah, Summary of Ibn Kastir's Tafsir (Translation) Syihabuddin,
GemaInsani Press, Jakarta, 1999, p.701
[14] WirjonoProdjodikoro, Inheritance Law in Indonesia, Source Bandung, Bandung, 1991, pp.13
[15] Beni Ahmad Saebani, FiqhMaqawis, CV Pustaka Setia, Bandung, 2009, pp.1
[16] Abdul GhofuAnshori and YulkarninHarahap, Islamic Law: Dynamics and Development in Indonesia,
Total Media Creation, Yogyakarta , 2008, hlm. 223
[17] Beni Ahmad Saebani, FiqhMawarits, CV Pustaka Setia, Bandung, 2009, pp. 116
[18] Abdurrahman, Compilation of Islamic Law, AkademiPressindo, Jakarta, 1992, pp.20
[19] Ibid. pp.21
[20] Compilation of Islamic Law

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