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	$0	$500,000	$333,333	? 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 thing?
First-born son Aaron age 22	$1,266,666	$607,142	$404,761	Might be divided equally between children but could be any thing
Married daughter Bracha age 20	$0	$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	$633,333	$607,142	$404,761
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

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[i] http://www.islamicsoftware.org/irth/irth.html

[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 1/3^rd 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.  

Conclusion

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.

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[i] This is story appears in the Midrash Bresheet Rabba 38, and is also told by Muslims

[ii] Soloveitchic, Rabbi JB, (1964) in Confrontation, http://www.bc.edu/dam/files/research_sites/cjl/texts/cjrelations/resources/articles/soloveitchik/

“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.  http://www.faithinallah.org/higher-objectives-of-islamic-law-maqasid-ash-sharia/

[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

[vii] http://www.islamicsoftware.org/irth/irth.html

[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

[x] http://www.bethdin.org/docs/PDF14-Halachic_Will_Materials.pdf

[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,  http://www.jlaw.com/Articles/last_will_and_testament1.html 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

Boldness, Reticence and Respectability: Joseph, Tamar and Reuben

Photo By Yaniv G, Permission to use for non-commercial
purposes with attribution

I am thinking about boldness. I am feeling tired of timidly asking advice. I am wondering if I should show more courage to back myself in spite of having gotten it wrong sometimes, or is it wiser to prudently seek advice? There is a part of me that wants to assert myself, throw caution to the wind, just decide by myself and then do it. How does that gel with the need for Humility? Jews have thought of bashfulness as one of our three defining positive characteristics[i] yet, we are also called to boldness[ii] with three biblical figures all displaying this in some form in the reading Vayeshev.

Boldness vs. Timidity and Bashfulness

 A compelling argument is made by Sir Walter Murdoch that human misery is not caused “a gang of scoundrels so depraved that they really wish to keep us all poor… There are not enough scoundrels to go round... The persons we have to face are the dull, the stodgy, the unimaginative, the ancestor-worshippers, too timid to think for themselves…[iii].  To put it another way, if we use both hands to cover our backsides, we have no hands to do anything with.

A young Indigenous young boy in the Northern Territory taught me something about holding back. I remember him as “Just Gamin”, because he gave me a false name before telling me in Territory slang that he was kidding, or “just gamin”. We played a game, in which he excelled by giving things away. His teacher praised him for this, but he immediately put his hand over his face. “Why are you doing that?” asked the teacher. “It’s shame”, he replied. An elder explained to me and to his teacher the next day that shame is a way her people show respect. Not standing out, instead deferring to the elders and the group. This has some similarity to the Jewish concept of מכיר מקומו recognising one’s place[iv]. We are taught that only a fool speaks before one who is greater than himself[v].

Joseph the Bold Dreamer 

As an ostracised younger sibling whose brothers disliked him so intensely they could not even speak to him[vi], Joseph would have been wise to “pull his head in”. His self appointment as monitor of his brothers’ behaviour, reporting all “sins” to their father[vii] alienated his siblings. Yet, Joseph does not lose confidence. Instead he dreams of ruling his brothers[viii]. Perhaps the fantasy was a response to the humiliation he suffered, a sentiment expressed as “the stone the builders scorned, ended up at the top of the corner[ix]”.

In Jewish tradition ‘our dreams at night reflect our thoughts during the day[x]’. This view of dreams suggests an element of choice and responsibility for our dreams and explains why Joseph’s brothers hated him even more on account of his dreams[xi].Remarkably; the hatred does not cause him to stop dreaming. He dreams again, an even more grandiose dream. In the second dream the sun and the moon and the stars are bowing to him. He insists on telling it to his brothers, even as they seek to ignore him, in his desire to make the dream real[xii]. In spite of his father secretly believing in the dream[xiii], he pretends to dismiss it. “What is this dream?!”  he asks, the implication is “how does your heart rise to dream this dream, this is nothing but arrogance and youthfulness[xiv]”.

Of course Joseph’s dreams come true. His leadership qualities keep surfacing. When his brothers sell him into slavery, he rises to become manager of his master’s house[xv]. When thrown into jail, he ends up running the place[xvi] and concerning himself with the needs of his fellow prisoners with sensitivity and awareness of their feelings[xvii]. With the benefit of hindsight we can see that thanks to the realisation of Joseph’s dreams, he eventually saves the family and the entire Egypt from famine. At the time, Joseph would have been described as confident to the point of recklessness. In spite of his brother’s hatred, he readily agrees to visit them in the field, and in the medium term he suffers the consequences.

Reuben, Boldness Lost?

In contrast with the bold Joseph, Reuben seems timid in his defence of his younger brother. Perhaps he had the stuffing knocked out of him when he acted impulsively on his anger[xviii] to defend his mother’s honour.  When Rachel was alive Jacob’s permanent bed was in her tent. When Rachel's died, instead of Jacob putting his bed in the tent of his first wife Leah, he moves it to his concubine Bilhah's tent[xix]. Reuben angrily declares “if my mother’s sister was a rival to my mother, should the maidservant of my mother’s sister now be a rival to my mother?![xx]” He moves his father’s bed from her tent and puts it in his mother's tent[xxi]. For years he carries guilt about the episode[xxii] with Bilhah, even running off to busy himself with fasting at a critical point in the drama of the sale of Joseph[xxiii].

Joseph’s life was in danger when his brothers consider murdering him. The Torah testifies that Reuben intended to save him[xxiv]. From Reuben’s words it is not so obvious. Reuben tells the brothers they should not kill him with their own hands, instead just throw him into a pit. It is suggested that Reuben initially suggested they should not sin at all with the boy. When they refused to listen, he changes his tune and partners with them[xxv]. He tries to make it seem that it is not out of love Joseph that he objects to the act of murder. He implies that his concern is about the difference in the severity of the punishment for outright murder in comparison to the less severe punishment for indirectly causing his death[xxvi]. A lesson from Reuben’s failure is that we must do things with a joyous or full heart, and that if Reuben had done so he would have lifted Joseph on his shoulder and carried him home to his father[xxvii].  On the other hand Reuben is credited for being a trailblazer, being the first person to repent[xxviii] on his own initiative.

Bold Beyond Respectability

Murdoch identifies “respectability” as “something (that) has worked so consistently against the healthy development of the race has been so consistently a clog on all progress towards the bettering of the world…  (it)has many virtues, but they are the meaner virtues, the timid virtues, caution, prudence, docility, tameness, discretion. All the brave, adventurous virtues are regarded by this dingy goddess as silly or dangerous, or both.

Respectability certainly does not constrain another bold character, the exceptionally beautiful[xxix] Tamar, daughter in law of a Judah[xxx]. She seduces her father in law after she sees herself being strung along[xxxi]. She had been promised Judah’s youngest son as a husband when he was old enough, but Judah was not keen as she had already married Judah’s two others sons who both died young. According to one view she had been so modest she would cover her face when she was in her father in-laws house[xxxii].  Yet, she overcame any reservations she had in order to achieve her goal of having a child from the family of Judah[xxxiii]. She times it for when Judah is doing his sheep sharing, “a time of happiness and great feasts and when a person is happy is desire overpowers him[xxxiv]”. She succeeds and gives birth to twins, whose descendants include King David and his descendents.

David himself famously thumbs his nose at respectability when he jumps and dances before God’s holy ark. His aristocratic wife, Michal, disgustedly describes David in his uninhibited dancing as someone “who exposed himself today in the eyes of the handmaids of his servants, as would expose himself one of the idlers.[xxxv]"  Yet, David himself also asserts that it is the broken and crushed heart that God will not despise^[xxxvi]. This links well with the idea that the ambiguous origins of David’s family were meant to prevent the kings of Judah from arrogance “by remembering their origins they would be of lowly spirit and would conduct their kingship with humility[xxxvii]”.

Conclusion

It all depends on the situation. There are merits in both reticence and boldness. Even shame can be a force for good, just as it can be an unhelpful inhibiting factor. I might feel some shame because a standard had been violated or it might be that an unjustifiable line drawn by others has rightfully been crossed. To achieve anything we will often need to bold and take risks. When we mess up we need to own up and address it, and then try again almost as if we had never fallen.

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[i] Talmud Yevamot 79a

[ii] Pirkey Avot 5:20, quoted in Kitzur Shulchan Aruch 1:3, be as bold as a leopard…

[iii] Sir Walter Murdoch, Collected Essays of Walter Murdoch – “On Dull People” http://r3dux.org/2010/07/collected-essays-of-walter-murdoch-%E2%80%93-on-dull-people/

[iv] Yam shel Shlomo 8:58 (Polish rabbi, Shlomo Luria (c.1510-1573) states: "Because, for our sins, the ordained are many but the learned few, and the ignorant are growing numerous; not one of them knows his place and as soon as he is ordained he begins to act like a lord and collect students at great expense, as do the noble officials who hire servants to run ahead of them." Cited by Adam Teller http://www.library.upenn.edu/exhibits/cajs/tradition/toc.html Also found in Tanya 27

[v] Pirkey Avot 5:7

[vi] Genesis 37:4

[vii] Gensis 37:2

[viii] Genesis  37:5-9

[ix] Psalm 118:22

[x] Talmud Brachot 55b, discussed in Nehama Liebovitz, New Studies In Bereshit, p.431

[xi] Bchor Shor

[xii] Lekach Tov, a dream that is not interpreted is like a letter that has not been read

[xiii] Berasheet Rabba 84: “He took a pen and wrote down the date and time and place” of the dream, Rashi: he was waiting for it to come true,  Seforno: “he thought that the dream will come true and he desired and look forward to it being fulfilled, while Sefer Hayashar has Jacob kiss him and bless him when he hears it. Clearly his criticism of Joseph was a show for the brothers to defuse their jealousy

[xiv] Ramban

[xv] Genesis 39:4

[xvi] Genesis 39:22-23

[xvii] The Lubavitcher Rebbe as explained by R. Yosef Y Jacobson

[xviii] Rashi to Genesis 49:4

[xix] Talmud Shabbat 55

[xx] Rashi to Genesis 35:22

[xxi] This is explored more fully in my post http://torahforsociallyawarehasid.blogspot.com/2010/11/shame-pride-striving-case-of-reuben.html

[xxii] The literal meaning of the text is “When his father lived in that land, Reuben went and slept with Bilhah, his father's concubine”. 

[xxiii] Beresheet Rabba 84

[xxiv] Genesis 37:22

[xxv] Bchor Shor

[xxvi] Ramban

[xxvii] Vayikra Rabba 34:9, this would have happened if Reuben realised that the Torah would right about his trying to save his brother

[xxviii] Beresheet Rabba 84

[xxix] Midrash Hagadol cited in Torah Shelaima, p. 1449

[xxx] a brother of both Joseph and Reuben

[xxxi] Genesis 38:6-16

[xxxii] Talmud Sotah 10b

[xxxiii] Rashi to Genesis 38:14

[xxxiv] Bchor Shor, interesting to compare this with the perspective given in Tanya that when a person is depressed he is most vulnerable to his evil inclination as his resistance is down

[xxxv] Samuel II, 6:14-20

[xxxvi] Psalm 51

[xxxvii] Radak