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

God's Way -Halacha (Shariah) vs. democracy

Disclaimers: 1) Some people speak from a religious perspective with no authority and limited knowledge. They create false impressions of their faith. 2) Commentary is influenced by historical context, and may not be the prevailing view in another time.

The Match

Last Thursday night I listened to an unrepresentative and unqualified fellow named Ibrahim Conlon, an architect convert to Islam who decided to redesign Australia. He spoke for the affirmative in a debate at a town hall on whether democracy should be replaced by Shariah law[1]. “What basis is there for democracy?!” he asked repeatedly. “What if you had 100 Murderers or Homosexuals? he challenged his opponent (ignoring the difference between the two) “would you still follow the majority?”

The question of the death penalty for apostasy was raised. A young Palestinian-Aussie asked me how Jewish law would respond to some of these explosive issues. Indeed, 1) what is the relationship between God's revealed path[2] and democracy? 2) How does it apply to humanity generally and 3) specifically for adherents of the Torah?

Clash of world views?

It has been argued that the world views of Torah and western are profoundly different[3].  Consider the divergence between Torah’s focus on obligations vs. a society that emphasises rights. This divergence leads to two ways of seeing law.
A) As an intrusion in life that should be tolerated only to the degree that it prevents people’s rights being trampled, so “government is best when it governs least[4]”.
B) If life is about our obligations, than the more laws the better because these laws ennoble and refine us[5] help us achieve our purpose in life[6], to prepare the society of completed people[7] or a home for God on earth[8].

Freedom, while prized in both systems, means different things in each. In Torah it is about the freedom to obey God[9], while in the west it is the freedom to do as we please. Finally, the value of individualism and individual choice in the open society even extends to the approval of civil disobedience to break the law which is not tolerated in the Halacha.  

Compatible or Compartmentalized?

Roth concludes that the divergent approaches can be dealt with by thinking of them as operating within different terms of reference, in different parts of a person’s life. As someone raised is a very different school of thought (Chabad) to that of Rabbi Roth, my subjective and likely very unfair reaction to this resolution is to hear echoes of the idea of a being Jew in the home and a “man” in the street[10].

Synthesis

An attempt at synthesis is made Rabbi David Rosen[11], who argues that if we think of democracy as being about equality and dignity of the individual then it would be seen by Torah as a moral imperative. He points to the fact that in the Torah it is the people who appoint the king[12]. Moses recounts how he consulted the people in his appointment of judges, “bring from among yourselves men of wisdom and understanding, well known to your tribes and I will appoint them[13]”.

When great sages Hillel and Shamai introduced a law that the public did not accept initially, it is not considered valid until a generation later when the community accepted it[14].  In one of our dramatic stories, a sage was asked to violate his own conscience and was humiliated. This was one factor that led to the demotion of the lead scholar of the Jewish people[15]. “If you (despise another person), know whom you despise for in the image of God, He made man[16]” The human being is not seen as little cog in the great wheel of God will, but as one made in the image of God, whose dignity and will deserves great respect. Democracy affirms the dignity of the individuals.

Civil law is binding on believers

Man made law is seen as authoritative and subject to certain conditions is binding on Jews as expressed in the principle of “Dina Dmalchuta Dina”, the law of the kingdom has the status of law[17]. (I cannot speak for Islam, but if I remember correctly, my Muslim colleague had once explained that Shariah would arrive at the same practical conclusion as a matter of implied contract as part of citizenship. He also thinks that Australia is much more of an Islamic state than Iran or Saudi Arabia because of its social policies are consistent in his view with Islam.)

Civil law, fulfilment of Divine Law?

Judaism has a tradition of a set of divine laws for all mankind called the “Seven Noahide laws”, one of these is the requirement to establish of systems of laws and justice. There are two opinions about this commandment a) The content of the laws was also prescribed by God and is essentially the same as the civil laws in the Torah[18]. b) The meaning of a system of “laws” as required by the Noahide code is justice based on national customs and lawmaking[19]. According to the latter view God's law sees the laws of governments as the fulfilment of God's command.

Jew stay out of court?

In spite of this, the courts of law established by non-Jews are not seen as the appropriate venue for Jews to seek justice[20], for various reasons. A) If their law is different to Torah law and money changes hands this would be considered theft[21]. B) The case of an idol-worshippers court even if in a particular law their laws would be identical to Jewish law because of a desecration of Gods name and honours the names of idols to praise them…when our enemies (are our) judges, this is a testimony to the superiority of their (object or religious) fear[22]. This would be the case even with a secular court, which by virtue of it replacing a Torah court would still be seen as denigrating Torah. An exception to this is when a Torah court gives permission to Jewish litigants to attend a civil court. From a legal perspective, my understanding is that in most cases, this should not be an issue if the litigants agree to appoint an arbitrator or mediator out of court.

Death Penalty for Unbelievers?

In practice Jewish law does not have the death penalty in spite of the fact that the law for executing an idol worshipper is still on the books. It is only because of the downgrading of rabbinic authority that we do not have the power to act on this. (Phew, how, very convenient).

Conclusion

Some of our ideals can be better realised in parallel with democracy, rather than within it. Still, democracy is one important and practical way to progress Torah’s vision of a just society. The Lubavitcher Rebbe referred to the United States as a “kingdom of kindness”. If a Jew argued for the destruction of democracy, he would be reminded that in theocracies, Jews were burned at the stake. A ‘Jewish Conlon’ would be told that as a democrat he had the right to say what he pleases, but as Jew he had an obligation to shut up and recognise the Torah case for democracy. Unless we knew for certain that he would not listen because he thinks he knows better, in which case the Mitzvah is to leave him alone. I would assume that in the actual case of Mr. Ibrahim Conlon, Australian Muslim religious leaders will counsel him in a similar way, if they think he is open to guidance. I hope with the additional information about our own tradition, we can respond more appropriately to the type of challenge I faced last Thursday night. 

With much appreciation to the scholars who have come before me, especially Rabbi Dr. Sol Roth and Rabbi David Rosen

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[1]  http://www.parramattasun.com.au/news/local/news/general/the-great-debate-in-parramatta-sharia-law-for-australia/2053480.aspx

[2] The Hebrew word for Jewish law is Halahca, which relates to the word “going”, or the ‘way to go’, the Muslim word is Shariah, which means the path.

[3] Roth Rabbi Dr. S (1990), http://www.yutorah.org/lectures/lecture.cfm/704412/Rabbi_Sol_Roth/Judaism_and_Democracy

[4]  John Stuart Mill, cited in Roth

[5]  Mitzvot were not given (for any other reason but) to refine the creations/Israel, Vayikra Rabba 13.3, Beresheet Rabba 44, Midrash Shmuel 84, also central to approach of Sefer Hachinuch

[6]  Based on Pirkey Avot, everything God created, he created only for his glory

[7]  Derech Hashem, Rabbi Moshe Chayim Lutzato in the introduction

[8]  Midrash Tehilim, as explained in Chabad Chasidism  

[9] As expressed in Pirkey Avot 6:2, “there is no one who is free other than one who studies Torah”

[10] Jacobs, L, “As late as the mid­-nineteenth century the Russian maskil, Judah Leib Gordon, could still proclaim as the Haskalah ideal: “Be a Jew in your home and a man outside it,” http://www.myjewishlearning.com/history/Modern_History/17001914/Emancipation_and_Enlightenment/In_the_West/Haskalah_I.shtml,

[11]  Rosen, D, (2001), Democracy: a Moral Imperative in Judaism http://www.rabbidavidrosen.net/articles.htm

[12] Deuteronomy 17:15

[13] Deuteronomy 1:13

[14] Talmud Shabbat 17a and Shulchan Aruch Choshen Mishpat chapter 2, cited in Rosen.

[15]  Mishna, Rosh Hashanah 2:8-9, story of Rabban Gamliel and Rabbi Yehoshua, where Rabbi Yehoshua calculated a different date for Yom Kippur and he was ordered to appear before Rabban Gamliel with his staff and wallet on the day he believed to be Yom Kippur.

[16] Beresheet Rabba 1:24

[17]  Talmud, Gittin 10a

[18]  Ramban Commentary on Beresheet, 34:13

[19] Rabbenu Yaakov Antoli (whose book has been used by the Orchot Chayim, Kol Bo and Meiri) in Melamed Hatalmidim, brought in Torah Shleima Miluim to Parsha Mishpatim p. 218

[20] Shulchan Aruch, Choshen Mishpat 26. (Quoted by Ira Yitzchak Kasdan - http://www.jlaw.com/Articles/psharah1.html)

[21] Chidushei R. Akivah Eiger, Shulchan Aruch, Choshen Mishpat 26:1 "Uv'arkaot shelahem."

[22]  Rashi on Exodus 21:1.