The science of inheritance laws

The science of inheritance laws is the knowledge of estate division and the correct determination of the proper shares in an estate with regard to the relation of the individual shares to the basic divisions.

It also includes the knowledge of the readjustment of shares munasakhah. Such readjustment is necessary when one of the original heirs dies and his portion is to be distributed among his heirs.

This requires a calculation to adjust the first division of the estate, so that all the heirs who are entitled to shares in the estate get to know their shares without an actual distribution taking place.

Such readjustments may have to be undertaken more than once or twice. Thus, there may be a greater number of them. Every time, a (new) calculation is needed.

Also, the division of an estate may have to consider two possibilities, in that, for instance, one heir may acknowledge an(other) heir, while a (third) heir does not acknowledge that second heir.

Then, the division of the estate is adjusted and figured out according to the two possibilities, and the amount of the shares is considered. Then, the estate is divided among the heirs in shares proportionate to the basic fractions.

All this requires calculation. Therefore, jurists made of it a separate subject, because, in addition to jurisprudence, it requires calculation as the predominant element in it.

They considered it a discipline in its own right.

Scholars have written many works on it. The most famous work on the subject among the more recent Spanish Malikites is the work of Ibn Thabit 255 and the Mukhtasar of Judge Abul-Qasim al-Hawfi,256 and then (the one by) al-Ja’di.257

Among the more recent Africans who wrote on the subject, there is Ibn al-Munammar at-Tarabulusi, and others.

The Shafi’ites, Hanafites, and Hanbalites have (also) written many works on the subject. They have given important and difficult practical instances showing their competence in jurisprudence and calculation.

There is, especially, Abul-Ma’ali Imam al-Haramayn and similar jurists.

This is a noble discipline. It combines intellectual and traditional knowledge.

It figures the claims in inheritance matters in a sound and definite way, whenever those who are charged with the division of an estate do not know the portion (of the estate that should go to each heir) and have difficulties with it.

Religious scholars in the Muslim cities have paid much attention to it. Some authors are inclined to exaggerate the mathematical side of the discipline and to pose problems requiring for their solution various branches of arithmetic, such as algebra, the use of roots, and similar things. They fill their works with such matters.

It is not something that is much used by the people, and it is of no practical use for them in their inheritance matters, because it deals with unusual and rare cases.

However, it is useful for practice and offers the best opportunity for acquiring the proper habit, (which can then be) applied to actual cases.

Most of the scholars who are concerned with this discipline refer, in order to prove its excellence, to the following tradition, which is transmitted on the authority of Abu Hurayrah: “The fard’id (inheritance laws) constitute onethird of (religious) scholarship, and they are the first (discipline) to be forgotten.”

Another recension has: “Onehalf of (religious) scholarship.”

The tradition was published by the hadIth expert Abu Nu’aym.

People who are concerned with inheritance laws use it as an argument (in favor of the importance of their science), because they think thatfard’id in the tradition quoted refers to estate division (furud). However, it is obvious that such an interpretation is farfetched.

Fard’id here is intended to mean “obligations” (furud) imposed upon Muslims in connection with religious worship, customs, matters of inheritance, and other things.

If understood in this sense, it is correct to state that (the fard’id) constitute one-half or one-third of scholarship. The inheritance laws (by themselves) constitute a much lesser portion of religious scholarship as a whole.

This interpretation of the meaning of fard’id in the tradition quoted, is supported by the fact that the application of the word fard’id to a particular discipline, or its restriction to estate division, is part of the technical terminology the jurists created when the various disciplines and terminologies came into existence.

At the beginning of Islam, the word (fard’id) was used only in a general way. It was derived from fard, which means “to determine” or “to cut.”

It was intended to be used for all the furud “obligations,” as we have stated. Such was its actual use in the religious law.

(In interpreting the tradition quoted,) the word must not be taken to mean anything but what it meant at the time of the (early Muslims). That indicates most correctly what they meant by it.