Friday, May 18, 2012

Inheritance Laws, Gender, Sharia & Halacha – An honest/diversity competence perspective

Last Thursday I attended a seminar on “Gender Differences and Inheritance”. I was moved by some ideas, impressed with the sincerity, the integrity and the inclusion of a female scholar on the panel who showed courage in raising an inconvenient practical problem. Some of it challenged me. I have been thinking a lot about what it means to be competent in responding to diversity. I think of the experience of a Greens party campaigner who told me how she managed to connect with campaigners from a far right party called One Nation. She realised they were not monsters, but people like her who wanted the best for their families and the community. Connecting with people we strongly disagree with is one of the great tasks of our time.

In this post I explore two issues, inheritance laws in Islam and Judaism and how this issue is to be dealt with in terms of interfaith respect and appreciation.

Some basic rules of inheritance in Islam
In Islam, I heard, sons inherit twice as much as daughters. The disparity is justified because men have responsibilities in Islam to support women as breadwinners. Impressively, one of the panellists raised the problem of Muslim men who shirk their responsibility. In Muslim majority countries, courts can compel them to contribute more, but there is not much that Muslim communities can do about this in non-Muslim countries.

We also learned that the widow gets 1/8 of the inheritance. In Malaysia a way was found, with approval from Islamic authorities, to give the family home to the widow. Essentially this is compensation for the income she did not earn while looking after the family. This solution was dismissed by the Islamic authority on the panel. ‘I don’t know where they got that Fatwa from’ he said, but he was quite sure it was wrong. 

An Interfaith/diversity competence perspective
On the surface, interfaith respect means that we respect each other despite our different beliefs. I suggest that it is easy when the differences are not something we care a lot about e.g one person prays 5 times while another prays 3 times. It is trickier, when the difference relates to strong opinions about what is right. When Abraham sees his father’s idols he doesn’t say, I respect his beliefs, instead he smashes them[i]. I think it is useful for me to honestly examine my discomfort and find my way to continue to respect and connect with Muslims, with integrity.  

Can an outsider understand?
One speaker at the seminar explained that it is important to consider Sharia as a holistic system of ways of living that cover every facet of life of the individual, families and communities. I agree that my capacity to fully understand the issue is limited by lack of experience of Islam as an outsider. A similar argument has been made against certain forms of interfaith dialogue; that religious experience is too intimate to be understood by an outsider[ii].

Diversity within Faith Communities- and the higher purpose of Shariah
It was clear that despite the view of the scholar on the panel, there were other substantial Islamic scholars who found a way to give a widow far more than he thought was right. An Imam I know suggested that the Malaysians might be following the principle of Maqasid[iii] (Maqasid at Shari’ah). My understanding of this approach is that it considers the broad purposes of the law alongside the letter of the law. Key purposes are compassion and benefit. “A mere conformity to rules that went against the purpose and vision of the Shari’ah was therefore generally unacceptable”. Perhaps the broader consideration of compassion in changed social conditions is being prioritised in the Malaysian approach.

Common Ground, Jewish Inheritance law
In Judaism the basic law in the written Torah itself is that sons get everything, the firstborn son gets double the amount inherited by the other sons, the daughters get nothing[iv], and the widow is not mentioned.

Classic texts of the oral law give a somewhat different picture.  The widow is entitled to have her needs provided for from the estate for the rest of her life in a way that is according to her honour and that of her late husband[v]. Daughters must be provided for until the age of puberty for food, clothes as needed rather than what she is accustomed to. Daughters past the age of puberty still inherit nothing, but daughters regardless of age can get up to 1 tenth of the estate to help pay for their “dowry”[vi]. Both widow and young daughters are also entitled to a place to live from the estate.

Based on the classic sources here is a partial comparison in the following scenario; Abraham age 60 is a devoutly religious man who dies in a plane crash. The estate is worth 3 million dollars including the family home which is worth $500,000. Abraham and his wife Sarah 53 had five children; son Aaron 22, married daughter Bracha 20, daughter Chaya 16, son Daniel 14 and daughter Elka 10.  Abraham’s mother, Freida aged 80 is still alive.
Family member
Classic Jewish Inheritance Law
Islamic law*- based on Seminar as applied in Western countries a helpful website[i] and my limited understanding
Islamic Law* as apparently practiced in Malaysia according to seminar and my limited understanding
Current Jewish Practice
Mother Freida aged 80
? any thing
Sarah 58- the widow
Expenses (rough figure $500,000) to live in dignity including unlimited use of family home
$375,000 + obligations by men of family
$250,000 + family home (total $750,000) and obligations by men of family
Family home + any
First-born son Aaron age 22
Might be divided equally between children but could be any thing
Married daughter Bracha age 20
$303,571 and obligations by men of family
$202,380 and obligations by men of family
daughter Chaya age 16
$0 but up to $300,000 dowry
$303,571 and obligations by men of family
$202,380 and obligations by men of family
son Daniel age 14
daughter Elka age 10
Expenses (basic til puberty $30,000) and up to $270,000 dowry[ii]
$303,571 and obligations by men of family
$202,380 and obligations by men of family

[ii] Shulchan Aruch Even Haezer Laws of Ketubot, 113:4, the second dowry is calculated after deducting older daughter Chaya’s $300,000 from the total)
* Note: in Islam there is discretion about 1/3rd of the estate.

Jewish “inheritance” in practice
There is a massive loop hole that makes Jewish inheritance laws practically irrelevant. If one used language to indicate that he wishes to gift his property in a way that is inconsistent with inheritance law he can do so[ix], which means he can give the sons, daughters of anyone else whatever they wish, including completely equal parts for all. There are other formulas that essentially amount to getting around the inheritance laws, which are recommended as part of a Halachic will by the Beth Din (religious court)[x]. What I find particularly interesting about this, is that this is done despite the explicit instructions to preserve inheritance law as an eternal law[xi]. It appears that customs began to emerge centuries ago not to give the first born son his double portion and this deviation was frowned upon[xii]. One opinion recommends a token gesture of leaving a small portion of the estate out of the formulas that get around the laws to obey the inheritance law at least symbolically[xiii].

Integrity & religious certainty
The sweepingly liberal application of Jewish law in this case can mean that men and women enjoy equality in inheritance. On the other hand I find it hard to explain how orthodox Jews can insist that every word of the Torah is the word of God handed down from Sinai[xiv] while almost completely going around a phrase “he will not be able to grant the son of his beloved wife the status of first born…but the first born son of the hated wife he must recognise to give him a double portion[xv]”. I am sure the scholars of the Talmud use their own rigorous methods, but I must acknowledge that the Imam taking the view that the inheritance laws are an expression of God’s wisdom shows consistency and integrity by refusing to find ways around it.

One of the diversity competence skills I have learned from my colleague, Donna Jacobs Sife is to be aware of and reflect on my own discomfort. So I ask myself, am I reacting to religious certainty based on the broad narrative that if Muslims are too religious, they will also be hostile to non-Muslims? I know that in my own tradition, those who take a less certain and literalist view are more often more respectful of other faiths. I also know very devout Muslims who take every word in Quran as the word of God and this reinforces their positive attitude to non-Muslims. I should not makes assumptions that project what happens in my own community or what seems to be the case with Christian fundamentalists on Muslims. I also know Jewish and Christian literalists who are deeply committed to interfaith respect. 

The choice between taking every work as the word of God is a big one. When I was in London as a 16 year old, I was told by a Jewish Cabbie, “God law is wrong”. When I asked him why he told me “I am a Mamzer, (a Bastard[xvi]) when I wanted to get married in my synagogue I was not allowed to”. He felt very humiliated because of this and was still enraged years later. “If I see Dayan Ehrentreu (chief of the London Beth Din) walking down the street, I would run him down with my cab” he told me. In his case, religious certainty led him to be publicly humiliated through no fault of his own. In practice, classic Jewish or Islamic Inheritance law might be quite harsh in certain situations on some women. I love the way some scholars in both faiths have found ways to mitigate the impact.

I would be easier on some people if people believed that the laws in the books were not binding. On the other side of the ledger, religious certainty is the deeply held position of billions of people. It motivates people to extraordinary generosity, personal sacrifice, and care for elderly parents or disabled children.  I was welcomed warmly by these “un-moderate Muslims” at the seminar, I think because of Islamic teachings of hospitality. My own children have been raised as I have been with religious certainty, I am grateful for how they are growing up and for my own parents modelling principle centered living, what matters most was what is right.  There are three atheists I know personally who are similarly virtuous, but that does not negate the religious pathway to virtue.  

It would be easier to avoid talking about this at all. Just to say that Jews and Muslims have a lot in common and I admire the many Muslims I come into contact with. I think for a real acceptance of each other, it is important to honestly grapple with the things that make us uncomfortable. The options I had were a) to recognise the limits of my understanding as an outsider, b) to try to get additional insight within the limits of what an outsider can understand, this approach yielded the fascinating ideas about the higher purposes of Sharia and helped me recognise the diversity of opinions within the faith c) I noticed a fair bit of common ground at least in the classic sources and d) I respect the integrity of the decision making without pretending to be comfortable with the decision. This is how I continue to deeply appreciate my fellow men and women, who follow Islam.

[i] This is story appears in the Midrash Bresheet Rabba 38, and is also told by Muslims
[ii] Soloveitchic, Rabbi JB, (1964) in Confrontation,
“The word of faith reflects the intimate, the private, the paradoxically inexpressible cravings of the individual for and his linking up with his Maker. It reflects the numinous character and the strangeness of the act of faith of a particular community which is totally incomprehensible to the man of a different faith community”.
[iii] Kamali, Mohammed Hashim (2010), He is Professor of Law at the International Islamic University Malaysia. He is author of numerous articles published in learned journals and many works including Principles of Islamic Jurisprudence, Criminal Law in Islam and Freedom of Expression in Islam.
[iv] Numbers 27:8-11, Deuteronomy 21:17
[v] Shulchan Aruch Even Haezer Laws of Ketubot, 112:6
[vi] Shulchan Aruch Even Haezer Laws of Ketubot, 113:1
[viii] Shulchan Aruch Even Haezer Laws of Ketubot, 113:4, the second dowry is calculated after deducting older daughter Chaya’s $300,000 from the total)
[ix] Shulchan Aruch, Choshen Mishpat, laws of inheritance, 381:7
[xi] Rabbenu Bchaya, on Numbers 27:11 commenting on the words “Chukat Mishpat”
[xii] Shulchan Aruch, Choshen Mishpat, laws of inheritance, 381:4 citing Marik Shoresh 8
[xiii] Responsa of Tashbaz, Vol.3 No.147, cited by Ksos Hachoshen, 352(2). See also Responsa, Chasan Sofer, Choshen Mishpat, 151. Cited in Dick, J, Halacha and the Conventional Last Will and Testament, accessed 18/05/12
[xiv] Note Rashi’s commentary based on Torah Cohanim to Leviticus 25:1, what is the link between Shemita and Mt. Sinai, all the general principles and details are all from Sinai
[xv] Deuteronomy 21:16-17
[xvi] This status could be the result of a child being born from a mother that is religiously considered married to a previous husband from whom she is legally but not religiously divorced and conceived with a new partner

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