The mode of distribution of a person’s belongings after his death has remained a controversial issue ever since the dawn of civilization. In ancient times, the personal belongings of a deceased were destroyed to protect the survivors from being molested by his spirit. In many areas his belongings, including his slaves and wives, were burried with him as it was believed that he would need them in the after world. Tombs have yielded rich evidences of such practices in the cultures of the Stone and Bronze ages as well as in the civilizations of ancient Egypt. Another way of disposing of a dead person’s possessions was to distribute them among his relatives; but the absence of any law in this regard often led to quarrel and violence, as was the case among the Comanche Indians. However, with the passage of time, in most regions of the world, various rules and statutes were enacted to ensure a peaceful transfer of a person’s holdings to his survivors. In many places, the institution of primogeniture was upheld mainly on the ground that it keeps estate and agricultural holdings intact, thereby making their more efficient development possible. In the eighteenth century, this system, which obviously served the needs of feudalism, was attacked by the supporters of democratic ideals and by the economists of the classical school. Subsequently, it collapsed in Europe during the French revolution, and after the American Revolution, it was swept away in the British colonies. In the new form, which extends to this day in some form or another, the distribution of inheritance extended to other relatives and children as well. However, how should the shares of various relatives be ascertained and how much liberty should a person have in bequething his wealth are issues which have sparked off a new debate in recent times. Consequently, most countries all over the world have their own peculiar set of rules and regulations regarding the distribution of a deceased’s belongings in case he has not disposed them of in his lifetime by making a will.
Fourteen hundred years ago, the Almighty guided mankind in this regard to solve the problem once and for all. Since this was a matter in which human intellect was not equipped to carve out the right path owing to its certain inherent shortcomings, a divine law was revealed by Him in the sublime language of the Qur’ān. According to the Qur’ān, the basis of distribution of inheritance among the survivors is the extent of benefit they hold for the deceased. It goes on to assert that there is no way human intellect can decide this on its own. Therefore, it must seek and follow divine help in this regard.
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Unfortunately, the way our jurists have interpreted this law from the Qur’ān has raised some very serious questions about the law itself. The most startling aspect of their interpretation of the verses of inheritance is that the sum of the shares mentioned exceeds one and as such they can in no way be distributed. They ‘solve’ the problem by proportionately decreasing all the shares. This in their terminology is called "aul" (The Doctrine of Increase) and they regard it as one of the finest accomplishments of human intellect. Even more astonishing is the fact that they themselves freely quote the following remarks of Hadhrat Ibni ‘Abbās on this outstanding feat:
"Atā bin Abee Ribāh narrates that he heard Ibni ‘Abbās speaking about the shares of inheritance, and specifically referring to aul among them. He was saying: ‘Do you people reckon that the one Who has knowledge about every sand particle shall distribute wealth in one half and one half and one third. And after giving this half and this half how shall you give the third?’ Atā says that he replied ‘what benefit is this to you and me. After we depart from this world, our own legacy shall be distributed in the manner people have adopted, contrary to our own view.’ Upon this Ibni ‘Abbās replied: ‘Then let us summon our sons and their sons, our women and their women and ourselves and theirselves and pray together that the curse of God be on every liar. God has not distributed any amount of wealth in one half and one half and one third." ("Ahkām-ul-Qur’ān ", Abu Bakr Jassās, Volume 2, Page 91)
The second very alarming aspect of their interpretation is the meaning of the word kalālah. The meaning which they have ascertained is against the linguistic principles of Qur’ānic Arabic. Consequently, to adjust this meaning and to remove an apparent contradiction they had ‘to add’ a few words to a verse1. In our opinion, this temperance with the Qur’ān is totally uncalled for and actually challenges the position of the claim of Divine Protection made by the Qur’ān .
Besides these two glaring instances, there are some other instances as well in which our jurists have erred in the interpretation of the law, making it an amalgam of complexity and ambiguity.
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In our opinion, there is only one reason for this gross misinterpretation and indeed for many others: Our scholars have failed to appreciate the diction of the Qur’ān . The verses of the Qur’ān have been set in the highest possible literary style and in the most subtle literary construction. They are neither poetic nor prosaic, yet possess the positive aspects of both. They contain figures of speech, satire and irony, besides employing a variety of narrative and dramatic techniques. Wordplay, dialogue and characterization add to the literary mood which pervades these verses. The choice of words is masterful so that the desired meaning is conveyed in as minimum number of words as possible. There is a profound structural and thematic coherence and each verse and each sūrah has a definite context. The words used are common Arabic words whose meanings are as manifest as the midday sun. The implied connotation of a word which has multiple meanings can easily be ascertained if the context in which it is used is kept in consideration. A very obvious technique adopted is that of ellipses ie, suppression of words which are understood to exist and if mentioned unnecessarily prolong the sentence and also affect its elegance and finesse. Undoubtedly, any person who will read the Qur’ān as a piece of literature will quickly acknowledge that the Qur’ān , in fact, is ‘a piece of literature’. Even in the verses of inheritance, which have a mathematical perspective because the shares of various heirs have been mentioned, the Qur’ān has maintained, quite perfectly, its exalted literary style and construction.
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In recent times, some scholars have attempted to make a new interpretation of this law and relieve the Ummah from the embarrassing situation which has arisen on its account. Among them is a humble effort made by my mentor, Mr Javed Ahmad Ghamidi. Approaching the whole issue through the universal principles of language and working ab-initio on their basis, he has come up with what can be termed as a prodigious work of research. He has demonstrated fully that only a literary appreciation of the Qur’ān is what is required for understanding the Words of the Creator. If a person has a flair for relishing the finer aspects of a language, the verses of the Qur’ān readily unfold their meaning to him. There is absolutely no need to employ the Doctrine of Increase (aul) to proportionately decrease the shares if the law of inheritance is understood on this basis. All the shares can be perfectly distributed. Similarly, the correct meaning of kalālah can be ascertained very easily if this approach is adopted.
In the following pages, I have reproduced Mr Ghamidi’s research article from Urdu. I hope that our readers shall weigh it in the scales of ‘Reason and Revelation’ and not in those of conventionality.
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1. The verse: Wa in kāna rajuluinyoorathu yurathu kalātan au imrātun wa lahu akhun au ukhtun fa li kulli wāhidimminhumas sudusu, according to their consensus originally had the addition minal um in it ie, Wa in kāna rajuluinyoorathu yurathu kalātan au imrātun wa lahu akhun au ukhtun minal um fa li kulli wāhidimminhumas sudus.