Woman’s Jurisprudence (Fiqh al-Mar’ah) – Sayyid Kamāl al-Ḥaydari | Lesson 12


We were discussing the verse [4:11] for the male, what is equal to the share of two females – and we said there are numerous questions we can ask about this verse. The first question was why does the Qur’ān mention the share of the male in this manner and we responded to it.

The second question is why is a male given the share of two females, and we said this is not always the case in the chapter of inheritance, and rather there are numerous rules and conditions applicable before this is the case. However, even in the situation where this is the case, what is the root for this ruling? Is it some ontological reason – that women are deficient, and unable to manage the affairs of life, foolish? Or is it a societal reason, that has to do with family life at that time, or any time which resembles the time when this verse was revealed. Some people quickly pass judgements saying Sayyid al-Ḥaydari believes this or similar rulings are not applicable. No, I do not say this, what I say is that as long as the subject-matter (mawḍū[1]) for a ruling exists, that ruling is to exist. My discussion is based on general principles, not on whether they are applicable today or not, although this is one of those cases where we can argue that some societies even today resemble those when the verse was revealed.

All rules are conditional to their subject-matters. We have many societies in the world who have different family structures, and if they were to convert to Islam, their family lives will remain the same. Will the same rule of a male having an equal share of two females apply to them? No – because the subject-matter for this ruling does not exist there. This does not go against the narrations that say Ḥalāl and Ḥarām of Muḥammad (p) remains Ḥalāl and Ḥarām till the end of times because all those Ḥalāl and Ḥarām are conditional to their subject-matters.

In many matters, the subject-matter is not known to us, particularly in chapters of worship (‘ibādāt). Let us look at some narrations. From Uṣūl al-Kāfi:

Ali ibn Ibrahim has narrated from his father from `Isma‘il ibn Marrar from Yunus ibn ‘Abd al-Rahman who has narrated the following: “I once asked al-Rida’ (as), ‘I pray to Allah to keep my soul in service for your cause, why is it that when a man dies his sons’ shares of the legacy are twice as much as the share of his daughters even though females are less capable and weaker?’ He (the Imam) said, ‘It is because Allah, most Majestic, most Glorious, has preferred men over women and because women become dependents of men.’”[2]

The narration gives the reason for the ruling, how can you come and say this is the wisdom for the ruling? It says because (women become dependents of men), how is this a wisdom? Why don’t we say the same when it says, do not drink alcohol because it is an intoxicant – over there we take it as a reason for its prohibition, not a wisdom.

In any case, is the Imam referring to an ontological aspect of women, or a societal aspect? Some might say, well it also says God has preferred men over women. However, we need to figure out what is this preference referring to? Is it ontological, in rights, in society, in what aspect?

A second narration[3]:

عبد الله بن سنان عن أبي عبد الله عليه السلام قال: قلت لأي علة صار الميراث للذكر مثل حظ الأنثيين؟ قال: لما جعل لها من الصداق

‘Abdullah bin Sinān asked Abi ‘Abdillah (as): For what reason (‘illah) did the inheritance of a male become double of that of a female? So he (as) replied: Due to what has been granted to her from her dower.

This is a case where a woman is getting paid nafaqah, dower, and thus there was no reason to give her such a large inheritance.

In another narration Imam al-Ṣādiq says:

إنّ المرأة ليس عليها جهاد ولا نفقة ولا معقلة ـ أي الدّية ـ وإنّما ذلك على الرّجال، فلذلك جعل للمرأة سهماً واحداً وللرّجل سهمين

Jihād, Nafaqah and nor blood money, but these exist for men. Therefore, for a woman one portion has been allocated, and for a man two portions.

These narrations are showing us that there was a certain family system in place during those times, and this ruling makes complete sense under those conditions. What happens if those circumstances change? If it changes then the subject-matter is no longer there. Unless the Prophet (p) comes and says Sayyid al-Ḥaydari, you are wrong, your understanding is wrong, and as a matter of fact this ruling is absolute under any circumstances and conditions – in which case I will simply obey what he (p) says.

Another narration in Man La Yaḥḍuruhu al-Faqīh, Volume 4[4]:

حدثنا علي بن أحمد بن محمد رضي الله عنه قال: حدثنا محمد بن أبي عبد الله الكوفي عن موسى بن عمران النخعي عن عمه الحسين بن يزيد عن علي ابن سالم عن أبيه قال: سألت أبا عبد الله عليه السلام فقلت له: كيف صار الميراث للذكر مثل حظ الأنثيين؟ فقال: لان الحبات التي أكلها آدم وحواء في الجنة كانت ثمانية عشر أكل آدم منها اثنتي عشر حبة، وأكلت حواء ستا فلذلك صار الميراث للذكر مثل حظ الأنثيين

This is a narration that exists in the works of Shaykh al-Ṣadūq who believed everything in it was Ḥujjah between him and Allah (swt), and ‘Allamah Majlisi – and a large number of Akhbāri scholars – believed that these narrations are all permissible to act upon and are reliable. Some Akhbāri scholars even believed that all the narrations in these works were most definitely uttered by the Imams.

Before I go into my next example, consider this work al-Biyologiya wa Maṣīr al-Insān, by Dr. Sa’īd Muḥammad al-Ḥaffar. It is a book written 30-35 years ago, but let us see what it says on page 95 where he discusses the relationship between the structure of inheritance and family life.  In this section the author talks about how a scenario which he believed will happen soon enough. He says there will come a time (although we know that some of this is already happening through gene modification), where a couple will literally be able to design the type of baby they want. What skin colour, how their hair should be, how tall they should become and so on. Then these details are given to a lab, and a child is brought to existence (in an artificial womb for example). Now tell me, is this child the son of that couple or not? Is that man the child’s father or not? Is that woman the child’s mother or not? No sexual-intercourse took place here for you to say the child belongs to the bed where the child was conceived – there was no bed!

If you say this person has no father, mother, brother, sister etc. – what happens to their inheritance? What does Islamic Fiqh have to say on this matter? You thought Fiqh is only rules of Istibrā’, Tahārah and Najāsah? Who told you that is all what Islam and Fiqh are about?

Now these different family structures that exist or will come to exist, does Fiqh have anything to say about them? No – because Fiqh has not taken them into consideration. Unless you say to all of humanity that if you convert to Islam, you must change your family structures. This is why you see today Muslim children that grow up in the West, they are unable to reconcile what Islam is saying, with what they are practically encountering – because the systems are completely different.

[1] Mawḍū in Uṣūl al-Fiqh and Fiqh discussions is that or are those things by which a law becomes activated. For example, the Mawḍū for the prayers of Ẓuhr is the noon time, and so as soon as it is noon, the Mawḍū for the law (which is Obligation of Ẓuhr prayers) becomes active on those who are responsible for it

[2] Volume 7, H 13016, Ch. 10, h 1

[3] ‘Ilal al-Sharā’i

[4] http://shiaonlinelibrary.com/الكتب/1141_علل-الشرائع-الشيخ-الصدوق-ج-٢/الصفحة_261

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