The economic law of Islam
has been revealed by the Almighty through His last Prophet (sws) for the
purification of the economy. It is based on the Qur’ānic philosophy of
creation. According to this philosophy, the Almighty has created this world
as a trial and test for man; every person has therefore been made to depend
on others for his living. No one in this world can live independently as
regards his needs and requirements. A person of the highest rank must turn
to the most ordinary to fulfill them. In other words, every single person
has an important role to play, without which this world cannot continue.
This role depends upon his abilities, intelligence and inclinations as well
as upon his means and resources, which vary from person to person. In fact,
it is because of this variation that a society comes into being.
Consequently, laborers and workers, artisans and craftsmen, tillers and
peasants are as indispensable as scholars and thinkers, savants and sages,
leaders and rulers. Every individual is an integral component of society and
contributes to its formation according to his abilities. The Qur’ān says:
نَحْنُ قَسَمْنَا
بَيْنَهُمْ مَعِيشَتَهُمْ فِي الْحَيَاةِ الدُّنْيَا وَرَفَعْنَا بَعْضَهُمْ
فَوْقَ بَعْضٍ دَرَجَاتٍ لِيَتَّخِذَ بَعْضُهُمْ بَعْضًا سُخْرِيًّا وَرَحْمَةُ
رَبِّكَ خَيْرٌ مِمَّا يَجْمَعُونَ (٣٢:٤٣)
We have apportioned
among them their livelihood in this world [in such a manner that] We have
exalted some in status above others so that they can mutually serve each
other. And better is your Lord’s mercy than what they are amassing. (43:32)
By creating various
classes of people, the Almighty is testing whether the big and the small,
the high and the low create a society based on co-operation and respect or
create disorder in the world by disregarding the role each person has been
ordained to play. The latter attitude would, of course, lead them to
humiliation in this world and to a grievous doom in the Hereafter. The
Qur’ān says:
وَنَبْلُوكُمْ بِالشَّرِّ وَالْخَيْرِ فِتْنَةً وَإِلَيْنَا
تُرْجَعُونَ (٣٥:٢١)
We are trying you by
giving you happiness and sorrow to test you, and to Us you will be returned.
(21:35)
It is to salvage man in
this trial that the Almighty has guided him through His Prophets and
revealed this economic law to cleanse and purify him.
Following is a summary of
this law:
1. The Obligation of
Zakāh: It is obligatory upon a Muslim to pay Zakāh according to the way
prescribed by the Sharī‘ah from his wealth, produce and livestock if he is
liable to it.
2. Sanctity of
Ownership: If a Muslim has paid his Zakāh dues, then his rightfully
owned wealth cannot be usurped or tampered with in any way, except if on
account of some violation by him. So much so that an Islamic State has no
authority to impose any tax other than Zakāh on its Muslim citizens.
3. Formation of a Public
Sector: For the just distribution of wealth, the establishment of a
public sector is essential. Consequently, everything which is not, or cannot
be owned by an individual should in all cases remain in the ownership of the
state.
4. Incompetence:
Since a person’s way of using his wealth and property also influences the
development and welfare of a society, the state, while acknowledging him to
be the owner, has the right to deprive him from using them if he is proved
to be incompetent.
5. Usurpation of Wealth:
It is prohibited to devour other people’s wealth and property by unjust
means. Gambling and interest are some horrendous forms of usurpation. Other
economic activities should also stand permissible or prohibited in the light
of this principle.
6. Documentation and
Evidence: In affairs such as various financial transactions, making a
will and acquiring a loan, the parties involved should write down a document
and call in witnesses to safeguard against any moral misconduct by either of
the parties.
7. Distribution of
Inheritance: The wealth of every Muslim must necessarily be distributed
after his death among his heirs in the following manner:
If the deceased has
outstanding debts to his name, then first of all they should be paid off.
After this, any legacies he may have bequeathed should be paid. The
distribution of his inheritance should then follow.
No will can be made in
favour of the heirs ordained by the Almighty. Similarly, no one can be an
heir to a deceased who has severed his kinship with him because of some
inappropriate deed or conduct.
After giving the parents
and the spouses their shares, the children are the heirs of the remaining
inheritance. If the deceased does not have any male offspring and there are
only two or more girls among the children, then they shall receive
two-thirds of the inheritance left over, and if there is only one girl, then
her share is one-half. If the deceased has only male children, then all his
wealth shall be distributed among them. If he leaves behind both boys and
girls, then the share of each boy shall be equal to the share of two girls
and, in this case also, all his wealth shall be distributed among them.
In the absence of children,
the deceased’s brothers and sisters shall take their place. After giving the
parents and spouses their shares, the brothers and sisters shall be his
heirs. The proportion of their shares and the mode of distribution shall be
the same as that of the children stated above.
If the deceased has children or if he does not have
children and has brothers and sisters, then the parents shall receive a
sixth each. If he does not even have brothers and sisters, then after giving
the husband or wife his (or her) share, one-third of what remains shall be
given to the mother and two-thirds to the father. If there is no one among
the spouses, then all of the inheritance shall be distributed among the
parents in this same proportion.
If the deceased is a man and he has children, then his
wife shall receive one-eighth of what he leaves, and if he does not have any
children, then his wife’s share shall be one-fourth. If the deceased is a
woman and does not have any children, then her husband shall receive
one-half of what she leaves and if she has children, then the husband’s
share is one-fourth.
Together with these rightful heirs or in their absence
or, as in some cases, from the left over inheritance, the deceased can make
a near or a distant relative, aside from his parents and children, an heir.
If the relative who is made an heir has one brother or one sister, then they
shall be given a sixth of his share and he himself shall receive the
remaining five-sixth. However, if he has more than one brother or sister,
then they shall be given a third of his share and he himself shall receive
the remaining two-thirds.
If a person dies without
making anyone his heir, then his remaining legacy shall be distributed among
his male relatives according to the principle ‘اَلْاَقْرَبْ
فَالْاَقْرَبْ’ (nearest to the next nearest).
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This is the law the
Almighty has revealed to us to purify our economic dealings. While following
this law in letter and spirit, a person may encounter financial difficulties
and he may have to sacrifice his interests. The real reward for this is the
Kingdom of Heaven which the Almighty will grant him on the Day of Judgment.
However, He has promised that if the Muslims in their collective capacity
adhere to faith and adopt a God-fearing attitude, the Almighty shall provide
them abundantly in this world as well:
وَلَوْ أَنَّ أَهْلَ الْقُرَى آمَنُوا وَاتَّقَوْا
لَفَتَحْنَا عَلَيْهِمْ بَرَكَاتٍ مِنْ السَّمَاءِ وَالْأَرْضِ (7: 96)
Had the people of these
cities accepted faith and kept from evil, We would have showered the
blessings of the heavens and the earth upon them. (7:96)
According to the Qur’ān,
the Prophet Noah (sws) recounted before his nation this established practice
of the Almighty in the following words:
فَقُلْتُ اسْتَغْفِرُوا رَبَّكُمْ إِنَّهُ كَانَ غَفَّارًا
يُرْسِلْ السَّمَاءَ عَلَيْكُمْ مِدْرَارًا وَيُمْدِدْكُمْ بِأَمْوَالٍ
وَبَنِينَ وَيَجْعَلْ لَكُمْ جَنَّاتٍ وَيَجْعَلْ لَكُمْ أَنْهَارًا (٧١
:١٠-١٢)
I said to them: ‘Ask
forgiveness from your Lord. He is Oft-Forgiving. [As a result], He shall
send rain upon you in abundance and give you increase in wealth and children
and bestow on you gardens and shall bring forth for you springs of water’.
(71:10-12)
The Old Testament says in
this regard:
If you fully obey the
Lord your God and carefully follow all his commands I give you today, the
Lord your God will set you high above all the nations on earth. All these
blessings will come upon you and accompany you if you obey the Lord your
God: You will be blessed in the city and blessed in the country. The fruit
of your womb will be blessed, and the crops of your land and the young of
your livestock – the calves of your herds and the lambs of your flocks. Your
basket and your kneading trough will be blessed. You will be blessed when
you come in and blessed when you go out. (Deuteronomy, 28:1-7)
After this preliminary
discussion, I will now attempt to explain this law in detail. (The verses of
the Qur’ān on which this law is primarily based are stated in bold.)
1. The Obligation of Zakāh
وَأَقِيمُوا الصَّلَاةَ وَآتُوا
الزَّكَاةَ وَأَقْرِضُوا اللَّهَ قَرْضًا حَسَنًا وَمَا تُقَدِّمُوا
لِأَنْفُسِكُمْ مِنْ خَيْرٍ تَجِدُوهُ عِنْدَ اللَّهِ هُوَ خَيْرًا وَأَعْظَمَ
أَجْرًا (٢٠:٧٣)
And [in the daytime and
at night] establish the prayer and pay Zakāh and [for the cause of your
religion and state] lend to Allah a befitting loan, and remember whatever
good you send forth for yourselves you shall find it with Allah better than
before and greater in reward. (73:20)
In the verse quoted above,
and at numerous other places in the Qur’ān, Muslims are directed to pay
Zakāh from their wealth. In religious parlance, Zakāh means the wealth given
in the way of Allah to obtain purity of heart and to obtain the blessings of
Allah. The root of the word Zakāh in Arabic has two meanings: ‘purity’ and
‘growth’. The words ‘purify them’ in the first and ‘people who will increase
their wealth’ in the second verse quoted below allude to these two meanings
of the word:
خُذْ مِنْ أَمْوَالِهِمْ صَدَقَةً تُطَهِّرُهُمْ
وَتُزَكِّيهِمْ بِهَا (١٠٣:٩)
Take alms from their
wealth [O Prophet!] in order to purify them with it. (9:103)
وَمَا آتَيْتُمْ مِنْ رِبًا لِيَرْبُوَا فِي أَمْوَالِ
النَّاسِ فَلَا يَرْبُوا عِنْدَ اللَّهِ وَمَا آتَيْتُمْ مِنْ زَكَاةٍ
تُرِيدُونَ وَجْهَ اللَّهِ فَأُوْلَئِكَ هُمْ الْمُضْعِفُونَ (٣٩:٣٠)
That which you give as
loan on interest that it may increase on [other] people’s wealth, it has no
increase with Allah; but that which you give as Zakāh, seeking Allah’s
countenance, it is these people who will increase their wealth [in the
Hereafter]. (30:39)
Subsequently, this word
was specifically used for the wealth a Muslim gives to those in authority to
meet the collective requirements of a state. It is evident from the Qur’ān
that like Salāh (prayer), Zakāh has always remained an essential ingredient
of the Sharī‘ah given to the Prophets of Allah. When the Almighty directed
the Muslims to pay Zakāh, it was not an unknown thing to them. All the
followers of the religion of Abraham (sws) were well aware of its philosophy
as well as its rates and statutory exemptions. Consequently, there was no
need to state the details of Zakāh in the Qur’ān. It was a pre-existing
Sunnah which the Qur’ān only revived and which the Prophet (sws), on the
Almighty’s bidding, established as a directive of the Sharī‘ah among the
Muslims. If, irrespective of the differences of the jurists in understanding
the concept of Zakāh, the details of this directive which have reached us
through the consensus of the Companions of the Prophet (sws) and their
practical perpetuation, and which now stand validated through the consensus
of the Ummah are studied as regards their bases in the Sharī‘ah, then they
can be stated as:
1. Items
Nothing except the tools of
production, personal items of daily use and a fixed quantity called nisāb
are exempt from Zakāh. It shall be levied annually on wealth of all sorts,
livestock of all types and produce of all forms of every Muslim citizen who
is liable to it. However, if some need arises, an Islamic State can give
relaxation on any item.
2. Exemption (Nisāb)
The statutory exemptions (nisāb)
in wealth, livestock and agricultural production are fixed as:
(a) Wealth: 5 ounces / 612
grams of silver or its equivalent
(b) Produce: 5 Wasaqs /
1119 kilograms of dates or their equivalent
(c) Livestock: 5 camels, 30
cows, 40 goats
3. Rates
(a) Wealth: 2 ½% annually
(b) Produce: (i) 5 %: on
all items which are produced by the interaction of both labor and capital,
(ii) 10 % on items which are produced such that the basic factor in
producing them is either labor or capital and (iii) 20% on items which are
produced neither as a result of capital nor labor but actually are a gift of
God.
(c) Livestock
(i) CAMELS
– From 5 to 24 (camels):
one she-goat on every five camels
– From 25 to 35: one
one-year old she-camel or in its absence, one two-year old camel
– From 36 to 45: one
two-year old she-camel
– From 46 to 60: one
three-year old she-camel
– From 61 to 75: one
four-year old she-camel
– From 76 to 90: two
two-year old she-camels
– From 91 to 120: two
three-year old she-camels
– Over 120: one two-year
old she-camel on every forty camels and one three-year old on every fifty
camels
(ii) COWS
– one one-year old calf on
every thirty cows and one two-year old calf on every forty cows
(iii) GOATS
– From 40 to 120: one
she-goat
– From 121 to 200: two
she-goats
– From 201 to 300: three
she-goats
– Over 300: one she-goat on
every hundred goats
4. Heads
The heads for which Zakāh
is to be spent were never unclear. It was always expended on the poor and
needy and on the collective requirements of the Muslims. However, when the
hypocrites in the time of the Prophet (sws) raised certain doubts about
these heads, the Qur’ān unequivocally stated them:
إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِينِ
وَالْعَامِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ
وَالْغَارِمِينَ وَفِي سَبِيلِ اللَّهِ وَاِبْنِ السَّبِيلِ فَرِيضَةً مِنْ
اللَّهِ وَاللَّهُ عَلِيمٌ حَكِيمٌ (٦٠:٩)
Zakāh is only for the
poor and the needy, and for those who are ‘āmils over it, and for those
whose hearts are to be reconciled [to the truth], and for the emancipation
of the slaves and for those who have been inflicted with losses and for the
way of Allah and for the welfare of the wayfarers. This is an obligation
decreed by the Almighty, the All-Knowing and the Wise. (9:60)
Here are some details of
the heads of Zakāh mentioned in this verse:
(a) ‘الْفُقَرَاءِ
وَالْمَسَاكِينِ’ (al-fuqarā wa’l-masākīn): The poor and the needy.
(b) ‘الْعَامِلِينَ
عَلَيْهَا’ (al-‘āmilīna ‘alayhā):
the salaries of all employees of the state.
(c) ‘الْمُؤَلَّفَةِ
قُلُوبُهُمْ’ (al-mu’allafat-i-qulūbuhum): all political expenditures
in the interest of Islam and the Muslims.
(d) ‘فِي
الرِّقَابِ’ (fi’l-riqāb): for liberation from slavery of all kinds.
(e) ‘َالْغَارِمِينَ’
(al-ghārimīn): for helping people who are suffering economic losses, or are
burdened with a fine or a loan.
(f) ‘ِفِي
سَبِيلِ اللَّهِ’ (fī sabīlillāh): for serving Islam and for the
welfare of the citizens.
(g) ‘اِبْنِ
السَّبِيلِِِ’ (ibnu’l-sabīl): for helping travelers and for the
construction of roads, bridges and rest houses for these travelers.
This is all as far as the
Sharī‘ah regarding Zakāh is concerned. However, since there exist some
general misconceptions about it, the following points must remain in
consideration:
Firstly, there is no basis
in the Qur’ān and Sunnah for the condition of ‘تمليك ذاتى’
(personal-possession) imposed by our jurists. Therefore, just as Zakāh can
be given in the personal possession of an individual, it can also be spent
on projects of his welfare.
Secondly, if the basis of
the directive is taken in consideration, industrial produce of all forms,
production of all forms based on various skills, rent of various items or
buildings of all forms, salaries (reward for labor) and fees of all forms
obtained in various ventures must be classified as produce and not as
wealth; therefore, the Zakāh imposed on them should be based on the rates
specified by the Prophet (sws) for land produce.
Thirdly, according to the
above mentioned principle, Zakāh on leased-out houses, properties and other
rented items should be that which is levied on produce, and if they are not
rented out, its rate should be that which is levied on wealth.
Fourthly, the Nisāb of all
items which are analogously linked such as those above can be fixed by the
state, if need be, by analogy with the ones specified.
2. Sanctity of Ownership
فَإِنْ
تَابُوا وَأَقَامُوا الصَّلَاةَ وَآتَوْا الزَّكَاةَ فَخَلُّوا سَبِيلَهُمْ
(٥:٩)
If they repent,
establish the prayer and pay Zakāh, leave them to themselves. (9:5)
This verse explains to the
Idolaters of Makkah the conditions which they had to fulfill to become
Muslim citizens of the Islamic state of Madīnah. If this context of the
verse is kept in consideration, it follows from the words ‘فَخَلُّوا
سَبِيلَهُمْ’ (fa khallū sabīlahum: leave them to themselves) that
just as an Islamic State cannot tamper with the life, honor and freedom of
expression of people who have acquired its citizenship after fulfilling the
conditions stated in the verse, it also has no right to commit any excesses
against their assets, wealth and property. If they accept Islam as their
religion, establish the prayer and are willing to pay Zakāh, the Almighty
bids the state to leave them to themselves and not forcibly demand a single
penny from them once they have paid Zakāh. The Prophet (sws), while
explaining this directive, is reported to have said:
أُمِرْتُ أَنْ أُقَاتِلَ النَّاسَ حَتَّى يَشْهَدُوا أَنْ
لَا إِلَهَ إِلَّا اللَّهُ وَأَنَّ مُحَمَّدًا رَسُولُ اللَّهِ وَيُقِيمُوا
الصَّلَاةَ وَيُؤْتُوا الزَّكَاةَ فَإِذَا فَعَلُوا عَصَمُوا مِنِّي
دِمَاءَهُمْ وَأَمْوَالَهُمْ إِلَّا بِحَقِّهَا وَحِسَابُهُمْ عَلَى اللَّهِ
(مسلم: رقم
٢٢)
I have been directed to
fight
with these people until they testify to the oneness of Allah and the
prophethood of Muhammad, establish the prayer and pay Zakāh. If they accept
these conditions, their lives shall be given protection except if they are
deprived of this protection on the grounds of some offence they commit.
As far as their account is concerned, it rests with Allah. (Muslim: No. 22)
In the sermon of the Last
Hajj, the Prophet (sws) asserted that the wealth of a Muslim has eternal
sanctity. Without the permission of the Almighty no one – not even the ruler
of the Muslims – has the authority to violate this sanctity. The following
subtle words allude to this:
إِنَّ دِمَاءَكُمْ وَأَمْوَالَكُمْ حَرَامٌ عَلَيْكُمْ
كَحُرْمَةِ يَوْمِكُمْ هَذَا فِي شَهْرِكُمْ هَذَا فِي بَلَدِكُمْ هَذَا (مسلم:
رقم
١٢١٨)
Indeed, your blood and
your wealth are as sacred and inviolable as this day
of yours, this month
of yours in this city
of yours. (Muslim: No. 1218)
It is evident from this
discussion that an Islamic state has no right to impose any sort of tax on
its Muslim citizens except Zakāh, the rates of which have been fixed in
their wealth by the Almighty through His Prophets.
This is an unimpeachable
directive of Islam. It is this very directive through which Islam not only
ends once and for all a great tussle between a state and its citizens in
financial matters, but also eliminates the possibility of a state creating
imbalance in the national economy by exceeding the resources available to
them.
3. Formation of a Public Sector
مَا
أَفَاءَ اللَّهُ عَلَى رَسُولِهِ مِنْ أَهْلِ الْقُرَى فَلِلَّهِ وَلِلرَّسُولِ
وَلِذِي الْقُرْبَى وَالْيَتَامَى وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ كَيْ لَا
يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ (٧:٥٩)
And whatever the
Almighty has bestowed on His Prophet from the people of the cities, it is
reserved for Allah and His Prophet and the relatives of the Prophet
and the orphans and the needy and the wayfarers so that it may not circulate
in only the rich among you. (59:7)
The context of this verse
is that in the Prophet’s times when people demanded that the wealth, land
and assets obtained from the enemy against whom no war had been waged be
distributed among them, the Qur’ān refused this demand; it asserted that
they belonged to Allah and the Prophet (sws) and were reserved for the
collective requirements of the state and religion, and for the poor and
needy. This, according to the Qur’ān, was necessary so that wealth should
not get concentrated among the rich and that it be directed to those sectors
of the society who, because of their natural disabilities and lack of
resources, are unable to struggle for their livelihood or for some reason
are left far behind others in earning for themselves.
Since the wealth and assets
referred to in the above mentioned verse were obtained without any real
assistance from the believers merely through the Almighty’s help in
accordance with His law regarding His Messengers, all of these were reserved
for collective purposes. The spoils of war obtained in the times of the
Prophet (sws) in various battles fought in Arabia were also owned by Allah
and the Prophet (sws)
because of the peculiar nature of these armed offensives. However, since the
believers had also assisted in acquiring them by using their personal
weapons, camels and horses as well as food, camps and various other items
needed during these wars, it was necessary to give them their due from these
spoils. Nevertheless, even in these spoils the Qur’ān reserved 1/5th of the
share for these collective purposes:
وَاعْلَمُوا أَنَّمَا غَنِمْتُمْ مِنْ شَيْءٍ فَأَنَّ
لِلَّهِ خُمُسَهُ وَلِلرَّسُولِ وَلِذِي الْقُرْبَى وَالْيَتَامَى
وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ (٤١:٨)
You should know that a
fifth of the spoils you get hold of are for Allah and the Prophet and his
near relatives and the orphans and the needy and the wayfarer. (8:41)
If the terminology of
modern times is used, we can say that it is the purport of the Qur’ān that
in the economy of a country a public sector should come into being parallel
to the private sector. The reason is that at the state level this is the
only way through which a balance can be achieved in the circulation of
wealth, and the problem of concentration of wealth in certain sections of
the society as a result of the development of private sector can be resolved
in an organized and planned manner.
As far as the way in which
this public wealth and property are to be organized is concerned, the
Sharī‘ah has left the matter to the circumstances which prevail in a society
and upon the general well-being of the Muslims. Therefore, the ruler of an
Islamic state in consultation with the elected representatives can adopt
whatever measures he deems appropriate in this regard. Consequently, it is
known that the Prophet (sws) in his time gave the lands of Khaybar for crop
sharing,
left certain lands under the permanent control of certain people for whom
these lands had been reserved,
regarded certain lands as Himā,
left certain things to be shared equally by every one
, fixed the principle of ‘اَلْاَقْرَبْ فَالْاَقْرَبْ’
(nearest to the next nearest) for using the water of certain springs and
canals
or the way the Caliph ‘Umar (rta) imposed a fixed amount of tribute (Khirāj)
on the state owned lands of Syria and Iraq conquered in his times, according
to the extent of their produce while leaving them in the hands of their
owners
4. Incompetence
وَلَا تُؤْتُوا السُّفَهَاءَ أَمْوَالَكُمْ الَّتِي جَعَلَ
اللَّهُ لَكُمْ قِيَامًا وَارْزُقُوهُمْ فِيهَا وَاكْسُوهُمْ وَقُولُوا لَهُمْ
قَوْلًا مَعْرُوفًا (٥:٤)
Do not give to the
feeble-minded the wealth and property which the Almighty has made a means
for your support and development. But feed and clothe them with magnanimity,
and speak to them with kindness. (4:5)
It is clear from the context of this verse that it
pertains to orphans and their guardians. The Almighty has directed us that
since wealth has been made a means of subsistence and survival for man,
therefore if an orphan is imprudent and naïve, then his guardians while
acknowledging his personal right must also take into consideration the
welfare of the family and that of the collectivity, and during the time he
is unable to properly discharge his responsibilities, they must not return
his wealth to him and should themselves take care of this wealth.
This is the context of the
verse. However, a further reflection on this verse shows that the basis of
the directive is their incompetence and not their status as orphans.
Therefore, it can be concluded that if the basis of the directive exists,
the above right granted to the guardians with regard to the orphans, by
analogy, should also be granted to a state with regard to its citizens. This
measure takes care of the welfare and well-being of the society, which must
always be kept in consideration. So, if a person because of his foolishness
and carelessness squanders away or ruins his wealth and resources, then it
is the duty of the state to strip him from their control and management and
take charge of them. However, in this case, it has been directed that the
state must generously cater for his requirements from his wealth and
whole-heartedly adjust all matters. The Arabic words used are ‘وَارْزُقُوهُمْ
فِيهَا’ (feed them in it) and not ‘وَارْزُقُوهُمْ
منها’ (feed them from it), and these words, according to Arabic
usage, clearly point to the generosity with which he must be looked after.
5. Usurpation of Wealth
يَاأَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا
أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ إِلَّا أَنْ تَكُونَ تِجَارَةً عَنْ
تَرَاضٍ مِنْكُمْ (٢٩:٤)
O believers! Do not
devour one another’s wealth by evil means except through trading by mutual
consent. (4:29)
This verse prohibits a
person from devouring other people’s wealth through means which are against
justice, honesty, fairness and against the good conventions of a society. It
is this directive of the Qur’ān which forms the basis of all prohibitions in
Islam that pertain to economic matters. Obtaining money through illegal
gratification, theft, extortion, lying, co-operation with evil,
embezzlement, misappropriation, consuming unclaimed items without
publicizing them, all come under it. These evils require no further
discussion since they are universally acknowledged sins in every society and
in every religion. Transactions and activities which become a source of
deceit or damage for the parties involved are also corollaries of this
directive. Their various forms which the Prophet forbade (sws) in his own
times are:
Selling something before
its possession is taken.
Selling grain bought in
mounds before bringing it to the place where it is sold.
Selling and purchasing done
by a city dweller for a villager.
Increasing one’s bid in an
auction just for deception.
Bargaining when someone
else is bargaining.
‘محاقله’
(Muhāqalah): Selling crop when it is still in the spikes.
‘مزابنه’
(Muzābanah): Selling the dates which are on a date-tree in exchange for
plucked dates.
‘معاومه’
(Mu‘āwamah): Selling the fruits of trees for many years.
‘ثنيا’
(Thaniyā): Leaving an unspecified exception in a bargain. One of its forms,
for example was that the seller would say: ‘I sell my grain to you, but I
will take something out of it’.
‘ملامسه’
(Mulāmasah): A deal in which a person, without thinking, just touches the
other person’s cloth and a deal is made in this manner.
‘منابذه’
(Munābadhah): A deal in which people throw something towards one another
and, in this way, a bargain is made.
‘بيع الى
حبل الحبله’ (Bay‘ ilā Habl al-Hablah): A deal in which people sell
camels by saying: ‘Whatever offspring this camel gives birth to and when
that offspring gets pregnant, whatever it gives birth to, then the [last]
offspring is bought by me’.
‘بيع
الحصاة’ (Bay‘u’l-Hisāh): In pre-Islamic times, such a bargain existed
generally in two forms: (a) people would make a deal about a piece of land
and then the buyer would throw a pebble; the distance covered by the pebble
would be regarded as the length of the sold land, and (b) people would throw
a pebble and say that whatever thing it touched would be considered as sold.
Selling fruits of a tree
before their quality and characteristics become evident.
Selling spikes before they
turn white and become safe from calamities.
Selling a commodity which
is defective, except when the buyer is informed of its defects.
Holding the milk of camels
and goats in their udders before selling it.
Intercepting tradesmen and
buying their merchandise before they reach the markets.
Making a deal by giving
money in advance such that a person obtains the item after it is ready
except if this transaction is carried out for a fixed measure, a specified
weight and a definite period of time.
‘مخابره’
(Mukhābarah): Adopting methods of crop-sharing in which the profit of the
landlord is fixed before hand.
Adopting methods of
crop-sharing in which the production of a particular area of land is
regarded as the right of the landlord.
Selling jointly owned
properties without giving the shareholders a chance to buy them except if
the ownership divisions are determined and the paths are separated.
Selling property which lies
on a pathway that is common with a neighbor’s house without giving him the
chance to purchase it.
Storing commodities of
general use to create a shortage and thereby increase their prices in the
market. The Prophet (sws) utterly forbade this and is reported to have said:
مَنْ دَخَلَ فِي شَيْءٍ مِنْ أَسْعَارِ الْمُسْلِمِينَ
لِيُغْلِيَهُ عَلَيْهِمْ فَإِنَّ حَقًّا عَلَى اللَّهِ تَبَارَكَ وَتَعَالَى
أَنْ يُقْعِدَهُ بِعُظْمٍ مِنْ النَّارِ يَوْمَ الْقِيَامَةِ. (مسندأحمد: رقم
١٩٨٠٢)
Anyone who interfered in
the markets of Muslims merely to increase the rates [of the commodities],
then the Almighty has the right to make a big fire his abode on the Day of
Judgment. (Musnad Ahmad: No. 19802)
These are the various forms
of sale and purchase and crop-sharing which the Prophet (sws) prohibited in
his times. Since all the above mentioned directives are based on the
underlying bases of deceit and damage, the directive of prohibition will
stand dissolved in circumstances in which these bases no longer exist, just
as if, as a result of evolution and development of civilizations, these
bases emerge in some new economic activity, then those charged with
authority can prohibit that activity.
Gambling and interest also
belong to this category of devouring wealth through evil means. This writer
will now venture to elaborate the view of the Qur’ān in detail on these two
hideous crimes.
Gambling
Gambling, everyone knows,
is merely chancing one’s luck. The Qur’ān has called it ‘رِجْسٌ
مِنْ عَمَلِ الشَّيْطَانِ’ (from among the filthy works of Satan).
Obviously, this expression has been employed because gambling gives rise to
moral misconduct in a person which gradually encompasses his personality.
The reason is that if an economic activity is based on rights and services
and rational decisions, it develops a high moral character, and if an
economic activity is based on mere chance, fortune and fortuity, it produces
an attitude which is based on avoidance of hard work and service. This gives
rise to such mean qualities as cowardice and faint-heartedness which
subsequently eliminate the innate qualities of honor, integrity, sincerity
and self-respect. As a result, a person becomes unmindful to the remembrance
of the Almighty and to prayer, and instead of having love and affection for
his fellow beings, he has nothing but enmity and hatred for them. The Qur’ān
says:
يَاأَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْخَمْرُ
وَالْمَيْسِرُ وَالْأَنصَابُ وَالْأَزْلَامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطَانِ
فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ إِنَّمَا يُرِيدُ الشَّيْطَانُ أَنْ
يُوقِعَ بَيْنَكُمْ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْخَمْرِ وَالْمَيْسِرِ
وَيَصُدَّكُمْ عَنْ ذِكْرِ اللَّهِ وَعَنْ الصَّلَاةِ فَهَلْ أَنْتُمْ
مُنتَهُونَ (٥ :٩٠-١)
O you who believe: this
liquor and gambling and idols and these divining arrows are abominations
devised by Satan. Avoid them that you may succeed. Satan seeks to stir up
enmity and hatred among you by means of liquor and gambling and to keep you
from the remembrance of Allah and from the prayer. Will you not then abstain
from them? (5:90-1)
An important point to note
is that gambling in pre-Islamic times was a means through which the rich
showed their generosity and helped the poor and needy. In winters, when cold
winds blew in and caused conditions akin to drought, the courageous would
gather at various places, drink liquor and in their state of inebriation
would slaughter any camels they could get hold of. They would pay the owner
of the camels whatever price he demanded. They would then gamble on the meat
of the slaughtered camels. Whatever parts of meat a person won in this
gambling, he would generously distribute them among the poor who would
gather around them on such occasions. In pre-Islamic Arabia, this was a
matter of great honor and people who took part in this activity were
considered very philanthropic and generous. The poets would narrate the
accounts of their benevolence in their odes. On the other hand, people who
stayed away from this activity would be called ‘Barm’ (stingy).
It was this very utility of
liquor and gambling which prompted people to inquire when they were regarded
as prohibited items. The Qur’ān asserted in its reply that in spite of
possessing this benefit, they were instrumental in producing moral
misconduct in an individual, which in no case can be allowed:
يَسْأَلُونَكَ عَنْ الْخَمْرِ وَالْمَيْسِرِ قُلْ فِيهِمَا
إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِنْ نَفْعِهِمَا
(٢١٩:٢)
They ask you about
liquor and gambling. Tell them: there is great sin in them and some profits
as well for people. But their sin is greater than their profit. (2:219)
Interest
Interest is also a similar
sin that morally pollutes a person as well as the institutions involved in
its transactions. Those who lend on interest totally safeguard their capital
by not risking it in any way and extort profit from the poor borrower. In
Arabic, it is called Ribā and the Qur’ān has used this very word for it.
Everyone who understands Arabic, knows that it implies a fixed increase
which a lender demands from the borrower just because he has given him the
permission to use his money for a certain period. The Qur’ān has vehemently
prohibited it in the following words:
الَّذِينَ يَأْكُلُونَ الرِّبَا لَا يَقُومُونَ إِلَّا
كَمَا يَقُومُ الَّذِي يَتَخَبَّطُهُ الشَّيْطَانُ مِنْ الْمَسِّ ذَلِكَ
بِأَنَّهُمْ قَالُوا إِنَّمَا الْبَيْعُ مِثْلُ الرِّبَا وَأَحَلَّ اللَّهُ
الْبَيْعَ وَحَرَّمَ الرِّبَا فَمَنْ جَاءَهُ مَوْعِظَةٌ مِنْ رَبِّهِ
فَانتَهَى فَلَهُ مَا سَلَفَ وَأَمْرُهُ إِلَى اللَّهِ وَمَنْ عَادَ
فَأُوْلَئِكَ أَصْحَابُ النَّارِ هُمْ فِيهَا خَالِدُونَ (٢٧٥:٢)
Those who devour
interest will rise up on the Day of Judgment like the man whom Satan has
driven to madness by his touch because they claim that trading is like
interest and how strange it is that Allah has permitted trading and
forbidden interest. Consequently, he who received this warning from the
Almighty and desisted [in obedience thereto], then whatever he has taken in
the past belongs to him and his fate is in the hands of Allah. And those who
repeat [the offence] will be companions of the Fire and will abide therein
forever. (2:275)
It is further stated:
يَاأَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ وَذَرُوا
مَا بَقِيَ مِنْ الرِّبَا إِنْ كُنتُمْ مُؤْمِنِينَ فَإِنْ لَمْ تَفْعَلُوا
فَأْذَنُوا بِحَرْبٍ مِنْ اللَّهِ وَرَسُولِهِ وَإِنْ تُبْتُمْ فَلَكُمْ
رُءُوسُ أَمْوَالِكُمْ لَا تَظْلِمُونَ وَلَا تُظْلَمُونَ (٢:
٢٧٩-٨٠)
O you who believe! Fear
Allah and give up what remains of your demand for interest. If you do it
not, beware of war from Allah and His Prophet. And if you repent, then you
can have your principal amount. Neither will you be allowed to deal unjustly
nor will you be dealt with unjustly. (2:278-9)
The reason why devourers of
interest will be raised up on the Day of Judgment as madmen owes itself to
their expression of amazement on the fact that the Almighty has not
prohibited trading while He has prohibited interest, whereas there is no
difference between the two. They maintain that if a trader can demand profit
on his capital, why can’t a lender on interest demand profit on his capital.
According to the Qur’ān, only a madman can give such an insane statement and
such insanity demands that its reward be no different than insanity itself.
So in accordance with the law of similarity between the deed and its reward,
such people would be raised up as madmen on the Day of Judgment.
Imām Amīn Ahsan Islāhī,
while commenting on this expression of amazement of interest-devourers,
remarks:
It is evident from the
objection raised by the interest devourers that the breed of people who
regard interest and trading as analogous to one another is not very rare
after all. It was found even in olden times. The Qur’ān has not even
commented on this foolish objection since its baseless nature is self
evident and only sheds light on the insanity of those who raise it. A trader
invests his capital in a trade which is in demand from the people. He makes
his merchandise available to people through hard work and by taking a lot of
risk. These people, in the first place, were not in a position to produce
this merchandise themselves, and if they were able to then it was only at a
heavy cost. Moreover, a trader spews his capital in the open market for
competition and his profit is determined by the low and high trends of the
market itself. He may end up losing all his money due to these trends and he
may be able to make some profit. So his hands are tied in this enterprise as
he cannot earn a single penny of profit in selling his merchandise until
his invested capital enters the market after being exposed to the risks and
fluctuations of the market forces and after once again providing service to
society.
So how can the
enterprise of a trader, who takes risk and provides service to the society
when he invests his capital, be compared to that of an interest devourer
whose enterprise is mean, callous, cowardly and hostile to humanity in its
very nature. He is a person who is not willing to take the slightest risk
with his capital but is very eager to extort profit.
It is because of this
fiendish nature of interest that the Prophet (sws) is reported to have said:
الرِّبَا سَبْعُونَ حُوبًا أَيْسَرُهَا أَنْ يَنْكِحَ
الرَّجُلُ أُمَّهُ (ابنِ ماجه: رقم
٢٣٠٤)
So great a sin is
interest that if it is divided into seventy parts, then the lightest of
these parts is equal in its extent to fornication with one’s mother. (Ibn
Mājah: No. 2304)
Here it should be kept in
mind that the Qur’ān has prohibited only the charging of interest; it has
not prohibited the giving of interest. People who have to pay interest on a
loan they have acquired in fact suffer injustice at the hands of the
interest-devourers.
What also needs to be
appreciated is that without any genuine reason a person who acts as an agent
of an interest-devourer or writes down its transaction or bears witness to
it, must be regarded as an equal criminal on the principle of ‘تعاون
على الاثم’ (co-operation with evil). It is narrated by Jābir (rta):
لَعَنَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ
آكِلَ الرِّبَا وَمُؤْكِلَهُ وَكَاتِبَهُ وَشَاهِدَيْهِ وَقَالَ هُمْ سَوَاءٌ
(مسلم: رقم
١٥٩٨)
The Prophet has severely
condemned the devourer of interest and the one who pays interest and those
who write an agreement [for such lending] and the two who are the witnesses
to this document and has said: ‘All of them are equal’. (Muslim: No. 1598)
The Prophet (sws) has
emphatically directed people to refrain from the slightest possible trace of
interest while borrowing in barter as well:
الذَّهَبُ بِالذَّهَبِ وَزْنًا بِوَزْنٍ مِثْلًا بِمِثْلٍ
وَالْفِضَّةُ بِالْفِضَّةِ وَزْنًا بِوَزْنٍ مِثْلًا بِمِثْلٍ فَمَنْ زَادَ
أَوْ اسْتَزَادَ فَهُوَ رِبًا (مسلم: رقم
١٥٨٨)
If you lend gold, then
take back the same type and the same amount of gold; and if you lend silver,
then take back the same type and the same amount of silver; for he who gave
more or desired more, then this is precisely what is interest. (Muslim: No.
1588)
الْوَرَقُ بِالذَّهَبِ رِبًا إِلَّا هَاءَ وَهَاءَ
وَالْبُرُّ بِالْبُرِّ رِبًا إِلَّا هَاءَ وَهَاءَ وَالشَّعِيرُ بِالشَّعِيرِ
رِبًا إِلَّا هَاءَ وَهَاءَ وَالتَّمْرُ بِالتَّمْرِ رِبًا إِلَّا هَاءَ
وَهَاءَ (مسلم: رقم
١٥٨٦)
If you lend gold in
exchange for silver, then there is a possibility of interest in this.
Similarly, for wheat in exchange for another type of wheat,
barley in exchange for another type of barley, date for another type of
date. Indeed if the exchange is done on the spot, then there is no harm.
(Muslim: No. 1586)
This is the correct meaning
of the above quoted Āhadīth. If all the Āhadīth on this topic had remained
intact, the scholars of our Ummah would not have faltered in interpreting
them. However, owing to the misinterpretation of the narrators in some
chains of narration, the words ‘هَاءَ وَهَاءَ’ (on
the spot), or similar words in the second Hadīth quoted above, were
incorporated in the first one; similarly, the word ‘الذَّهَبُ
بِالذَّهَب’ (gold in exchange for gold) of the Hadīth quoted first
were put in place of the words ‘الْوَرَقُ بِالذَّهَبِ’
(if you lend silver in exchange for gold) of the second. It is because of
this intermingling of words that our jurists have erroneously derived the
concept of Ribā al-Fadl from such Āhadīth, whereas the correct concept in
this regard is what the following words of the Prophet (sws) say:
إِنَّمَا الرِّبَا فِي النَّسِيئَةِ (مسلم: رقم
١٥٩٦)
Ribā is only in
transactions of loan. (Muslim: No. 1596)
It should be borne in mind
that interest pertains only to those transactions in which a commodity is
borrowed for the purpose of ‘using it up’ whereby the borrower would be
burdened to recreate it in order to return it to the lender. If any
additional amount is demanded over and above it, then this no doubt is
injustice as affirmed both by reason and revelation. On the contrary,
transactions in which the commodities and items in question are ‘used’
rather than being ‘used up’ relate to lease, and the money demanded by the
owner on providing this service, which is termed as rent, can in no way be
objected to.
Similarly, it should also
remain clear that whether a loan is acquired for personal, business or
welfare purposes, the real meaning of Ribā is not ascertained on these
bases. It is an indisputable fact that in the Arabic language the word Ribā,
irrespective of the aim of the lender and the condition of the borrower,
just implies a pre-determined increase acquired on a loan. Consequently, the
Qur’ān itself has clarified this fact: during its own period of revelation,
lending on interest for business purposes was quite rampant and these loans
were given with the intention of prospering through the wealth of others.
The Qur’ān says:
وَمَا آتَيْتُمْ مِنْ رِبًا لِيَرْبُوَا فِي أَمْوَالِ
النَّاسِ فَلَا يَرْبُوا عِنْدَ اللَّهِ وَمَا آتَيْتُمْ مِنْ زَكَاةٍ
تُرِيدُونَ وَجْهَ اللَّهِ فَأُوْلَئِكَ هُمْ الْمُضْعِفُونَ (٣٩:٣٠)
That which you give as
loan on interest that it may increase on [other] people’s wealth, it has no
increase with Allah; but that which you give as Zakāh seeking Allah’s
countenance, it is these people who shall get manifold [in the Hereafter] of
what they gave. (30:39)
The expression ‘…that it
may increase on [other] people’s wealth’ is not only inappropriate for
application to interest-based loans given to the poor for their personal
use, but is also clearly indicative of the fact that interest based loans
were generally given for business purposes and in this way they ‘increased
on other people’s wealth’ according to the Qur’ān.
It is to this fact that the
following verse also points:
وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ
وَأَنْ تَصَدَّقُوا خَيْرٌ لَكُمْ إِنْ كُنتُمْ تَعْلَمُونَ (٢٨٠:٢)
If the borrower is in
difficulty grant him respite until it is easy for him to repay and if you
write off [the debt], it is better for you, if you only knew. (2:280)
Imām Amīn Ahsān Islāhī
comments on this verse in the following words:
Today some naive people
claim that the type of interest which prevailed in Arabia before the advent
of Islam was usury. The poor and the destitute had no option but to borrow
money from a few rich money-lenders to fulfill their personal needs. These
money-lenders exploited the poor and would lend them money at high interest
rates. It is only this type of interest which the Qur’ān has termed as Ribā
and forbidden. As far as commercial interest is concerned, it neither
existed at that time nor did the Qur’ān prohibit it.
The verse categorically
refutes this ‘allegation’. When the Qur’ān says that if the borrower is in
difficulty, he should be given respite until he is able to pay back his
debt, it clearly points out that in those times even the rich used to
acquire loans. In fact, if the style and stress of the verse are correctly
understood, it becomes clear that it was mostly the rich who used to procure
loans. Indeed, there was a strong chance that the borrower would find
himself in difficulty even to pay the original amount. The money-lender,
therefore, is directed to give him more time and if he forgoes the original
amount it would be better for him. The words of this verse strongly indicate
this meaning. The actual words of the verse are: ‘وَإِنْ
كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ’. The particle of
condition ‘ِانْ’ (if) is not used for general
circumstances, but, in fact, is used for rare and unusual circumstances. For
general circumstances the particle ‘اِذَا’ (if) is
used. In the light of this, it is clear that the borrower in those times was
generally affluent (‘ذُوْمَيْسَرَة’), but in some
cases was poor or had become poor after acquiring the loan and in that case,
the Qur’ān has directed the money-lenders to give them a time rebate.
He has concluded this discussion by saying:
Obviously, the affluent
would have turned to the money-lenders not to fulfill their personal needs,
but, of course, their business needs. So what is the difference between
these loans and the commercial loans of today.
6. Documentation and Evidence
I
يا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنتُمْ
بِدَيْنٍ إِلَى أَجَلٍ مُسَمًّى فَاكْتُبُوهُ وَلْيَكْتُبْ بَيْنَكُمْ
كَاتِبٌ بِالْعَدْلِ وَلَا يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ
اللَّهُ فَلْيَكْتُبْ وَلْيُمْلِلْ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ
اللَّهَ رَبَّهُ وَلَا يَبْخَسْ مِنْهُ شَيْئًا فَإِنْ كَانَ الَّذِي عَلَيْهِ
الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَنْ يُمِلَّ هُوَ
فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ
رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ
تَرْضَوْنَ مِنْ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ
إِحْدَاهُمَا الْأُخْرَى وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا وَلَا
تَسْأَمُوا أَنْ تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَى أَجَلِهِ ذَلِكُمْ
أَقْسَطُ عِنْدَ اللَّهِ وَأَقْوَمُ لِلشَّهَادَةِ وَأَدْنَى أَلَّا
تَرْتَابُوا إِلَّا أَنْ تَكُونَ تِجَارَةً حَاضِرَةً تُدِيرُونَهَا
بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلَّا تَكْتُبُوهَا وَأَشْهِدُوا
إِذَا تَبَايَعْتُمْ وَلَا يُضَارَّ كَاتِبٌ وَلَا شَهِيدٌ وَإِنْ تَفْعَلُوا
فَإِنَّهُ فُسُوقٌ بِكُمْ وَاتَّقُوا اللَّهَ وَيُعَلِّمُكُمْ اللَّهُ
وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ (٢٨٢:٢)
O you who believe! When
you acquire a loan for a fixed period, record it in writing, and let a
scribe write it down between you with fairness; he who can write should not
refuse to write, and just as Allah has taught him to write, he also should
write for others; the one who has acquired the loan should have [the
document] written down and fearing Allah his Lord, he should not make any
reduction in it. If he on whom rests the responsibility of writing is
indiscreet or feeble or unable to have it written, then let his guardian do
so with justice. And call in two male witnesses from among your men, but if
two men cannot be found, then one man and two women from among your likable
people so that if one of them gets confused, the other reminds her. And
witnesses must not refuse when they are summoned. And whether the loan is
big or small, be not negligent in documenting the deal up to its period.
This is more just in the sight of Allah, it ensures accuracy in testifying
and is the most appropriate way for you to safeguard against doubts. But if
it be an everyday transaction, it does not matter if you do not write it
down. And call in witnesses also if you sell or purchase anything. And let
no harm be done to the scribe or the witness. If you do so, then this will
be a transgression which will cling to you. And fear Allah. Allah is
teaching you. He has knowledge of all things. (2:282)
This verse directs the
Muslims to document monetary transactions whether in cash or in credit to
safeguard against any dispute that may arise. Imām Amīn Ahsan Islāhī has
summarized the directives mentioned in this verse in his Tadabbur-i-Qur’ān
in the following words:
1. Whenever a loan is
acquired for a certain period, the transaction should be written down in the
form of a document.
2. This document should
be written down in a just manner by some scribe in the presence of both the
parties. He should not be fraudulent in writing this down. A person who
knows how to write should not refuse if he is called upon to do so. The
skill of writing is a blessing of Allah, and, in gratitude to this, a person
should help others whenever the need arises. The need for this piece of
advice arose because in those times very few people knew how to write.
Formal and legal documentation and registration had not begun and neither
was its inception an easy affair.
3. The responsibility of
writing down the document rests on the borrower. The document should state
the name of the person from whom he has borrowed, and like the person who
has been entrusted with the responsibility of writing down, he too should
uphold the virtue of piety in this affair, and in no way try to damage the
parties involved.
4. If the borrower is
naïve, feeble or is not in a position to write down the document, then his
guardian or attorney should have it written down on his behalf with justice
and fairness.
5. Two male witnesses
should testify over this document. The words used are ‘مِنْ
رِجَالِكُمْ’ (from among your men), which imply two things
simultaneously: firstly, the witnesses should be Muslims and known to the
parties involved. The second thing which is specified in this regard is that
the witnesses should be honest and trustworthy and of sound character.
6. If two male Muslims
having the said qualities are not available, then one man and two women can
be selected to fulfill this responsibility. The requirement for two women is
because if one of them commits an error the other may correct her. This is
not because women are inferior, but because this responsibility is not very
suited to their temperament and general sphere of interests and the
environment they are used to. Consequently, the Sharī‘ah has given them some
relief and assistance in it. This topic is discussed in detail in Sūrah Nisā.
7. People who have borne
witness to a document should not desist from giving their testimony when
they are called upon to do so because bearing witness to a truth is a great
social service also, and as witnesses to the truth, it is a responsibility
of the Ummah imposed on it by the Qur’ān.
8. If the loan, whether
it be small in amount or large, is acquired for a period and is not an
everyday loan, one must not show aversion to writing it down. People who
ignore this by considering it a burden, sometimes get involved in severe
disputes which produce far reaching results merely because of this
slackness.
9. All these directives
are in accordance with justice, and they safeguard testimonies and protect
people from doubts and disputes. So it is necessary to follow them for the
general well-being of the society.
10. Everyday loans and
transactions are not required to be written down.
11. Witnesses, however,
should be called upon important deals and transactions to resolve any
disputes that may arise.
12. It is not proper for
a party to harm the scribe or the witness if a dispute arises. Scribes and
witnesses do a great social service, and if they are harmed, honest and
cautious people will start avoiding these responsibilities and, except for
professional witnesses, people will have difficulty in finding witnesses who
are reliable. In present times, the reason honest and serious minded people
avoid these responsibilities is that whenever some dispute arises in such an
affair, the witnesses have to face a lot of trouble and discomfort. They
become the targets of defamation, suffer monetary losses and even get
killed. The Qur’ān has stopped people from such excesses and warned that
this is not a small offence that may be forgiven. It is a transgression
which will cling on to them, and they will not be able to save themselves
from its evil consequences. This is nothing but an effort to raze down the
foundation of the pillar of bearing witness to the truth – the very
objective of this Ummah.
II
يَاأَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ إِذَا
حَضَرَ أَحَدَكُمْ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ
مِنْكُمْ أَوْ آخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي
الْأَرْضِ فَأَصَابَتْكُمْ مُصِيبَةُ الْمَوْتِ تَحْبِسُونَهُمَا مِنْ بَعْدِ
الصَّلَاةِ فَيُقْسِمَانِ بِاللَّهِ إِنْ ارْتَبْتُمْ لَا نَشْتَرِي بِهِ
ثَمَنًا وَلَوْ كَانَ ذَا قُرْبَى وَلَا نَكْتُمُ شَهَادَةَ اللَّهِ إِنَّا
إِذًا لَمِنْ الْآثِمِينَ فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّا
إِثْمًا فَآخَرَانِ يَقُومَانِ مَقَامَهُمَا مِنْ الَّذِينَ اسْتَحَقَّ
عَلَيْهِمْ الْأَوْلَيَانِ فَيُقْسِمَانِ بِاللَّهِ لَشَهَادَتُنَا أَحَقُّ
مِنْ شَهَادَتِهِمَا وَمَا اعْتَدَيْنَا إِنَّا إِذًا لَمِنْ الظَّالِمِينَ
ذَلِكَ أَدْنَى أَنْ يَأْتُوا بِالشَّهَادَةِ عَلَى وَجْهِهَا أَوْ يَخَافُوا
أَنْ تُرَدَّ أَيْمَانٌ بَعْدَ أَيْمَانِهِمْ وَاتَّقُوا اللَّهَ وَاسْمَعُوا
وَاللَّهُ لَا يَهْدِي الْقَوْمَ الْفَاسِقِينَ (٥
:١٠٦-٨)
Believers! When death
approaches someone among you, and he is making a bequest, the testimony will
take place in a way that two just men from among you will act as witnesses,
or if you are traveling and the calamity of death overtakes you, then two
just men from outside you should discharge this responsibility. Detain them
[ – the two just Muslims –] after the prayer, and then if you have any
doubts, they should swear by Allah: ‘We will not accept any price for this
testimony even if some kinsman offers it, neither will we hide this
testimony of Allah. If we do this, then we would be among the sinners’. But
if it becomes known that they have proved dishonest, then let two others
stand forth in their places from among the people who have been deprived of
their right by these two witnesses; then they should swear by Allah, saying:
Our testimony is truer than theirs and that we have not trespassed [beyond
the truth] in our testimony. If we do this, then we indeed should be among
the wrongdoers. In this way, it is more likely that they will bear true
witness or at least they will fear that their testimony may get refuted by
that of the others. [Do this], and fear Allah and listen and [remember that]
Allah never guides the evil-doers. (5:106-8)
In these verses, believers
are directed about their wills and bequests with the same stress and
emphasis as they are in matters of loan and other transactions. A summary of
these directives is presented below:
1. If death stares a person
in his face and he has to make a will regarding his wealth, then he should
call in two just witnesses from among his Muslim brethren.
2. If death approaches him
during a journey, and two Muslim witnesses are not available there, then as
a last resort he can call in two non-Muslim witnesses.
3. If there is a possibility that those selected from
among the Muslims as witnesses might show some bias to someone by altering
their testimony, then as a precautionary measure, they can be held back
after a congregational prayer in the mosque and be asked to swear by Allah
that they will not alter their testimony for some worldly gain or in
partiality of someone even if he be their close relative, and, if they do
some alteration, then they will be sinners.
4. The witnesses should
know that this testimony is ‘شهادة الله’ (the
testimony of Allah). So even if they are dishonest in the slightest way, it
would mean that they are dishonest not only to their brethren but also to
the Almighty.
5. In spite of this, if it
comes to surface that these witnesses have shown bias to someone contrary to
the will made by the deceased, then two people from among the brethren of
the person who has become the victim of this injustice should stand up and
swear that they are truer than the previous witnesses; that they have not
committed any excess in this regard and that they will be wrongdoers before
the eyes of Allah if they do so.
6. It is likely that after
this further measure, the witnesses will not give a false testimony for they
will have the fear hovering over them that if they commit any wrong, others
will negate their oaths and in spite of being given preference, their oaths
will be refuted.
7. Distribution of Inheritance
I
كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ إِنْ
تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ
وَالْأَقْرَبِينَ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ فَمَنْ
بَدَّلَهُ بَعْدَمَا سَمِعَهُ فَإِنَّمَا إِثْمُهُ عَلَى الَّذِينَ
يُبَدِّلُونَهُ إِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ فَمَنْ خَافَ مِنْ مُوصٍ جَنَفًا
أَوْ إِثْمًا فَأَصْلَحَ بَيْنَهُمْ فَلَا إِثْمَ عَلَيْهِ إِنَّ اللَّهَ
غَفُورٌ رَحِيمٌ (٢
:١٨٠-٢)
When death approaches
any one of you and you are leaving behind some wealth, it is incumbent upon
you to make a will in favour of your parents and relatives according to the
conventions [of society]. This is an obligation imposed upon the
God-fearing. Then if anyone changes the will after hearing it, then its sin
shall rest on those who change it. Indeed, God hears and knows [all things].
But anyone who fears partiality or wrongdoing on the part of the person who
has made the will, and he makes peace between them, then there is nothing
sinful in this. For Allah is Forgiving, Ever-Merciful. (2:180-2)
The verses of Sūrah Nisā
(quoted below) which ascertain a specific share for each heir and their
placement in the Qur’ān clearly show that the above mentioned directive of
making a will for the parents and relatives according to the conventions of
society was revealed earlier. These verses of Sūrah Nisā also explain that
the reason the Almighty has ascertained the shares of parents and relatives
in the legacy of a deceased is that man cannot know who among his relations
is near to him in benefit. Also, in these verses, the Almighty has called
this ascertaining of shares as His will, against which no Muslim, it is
evident, should dare make his own will. The following verse also
corroborates this fact:
لِلرِّجَالِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ
وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ
وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَفْرُوضًا(7:4)
From what is left by
parents and those nearest related, there is a share for men and a share for
women whether small or large – a fixed share. (4:7)
In view of this, it is
clear that the verses of Sūrah Nisā abrogate the above quoted directive of
Sūrah Baqarah. However, the purpose of this abrogated directive in the words
of Imām Amīn Ahsan Islāhī was:
The directive of making
a will in favour of one’s parents and relatives mentioned in this verse was
contingent upon the conventions of the society, and was given in the interim
period when the Islamic society had not become stable enough to be given the
directives which were later revealed in Sūrah Nisā. It was revealed as a
temporary directive before circumstances became conducive for detailed
directives in this regard. It had two basic objectives: first, to
immediately safeguard the rights of those relatives which were being usurped
by influential relatives and second to revive once again the conventions of
the society in this regard which had existed in the nobility of Arabia but
were engulfed in the dust of the age of ignorance (Jāhiliyyah); this revival
would pave the way for the detailed law that was to be revealed later.
II
يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ
حَظِّ الْأُنثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ
ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ (١١:٤)
God enjoins you about
your children that a boy’s share is equal to that of two girls’. And, if
there are only girls among the children and they are more than two, then
they shall receive two-thirds of the inheritance, and, if there is only one
girl, then her share is half. (4:11)
It is this directive of the
sūrah which abrogates the verse of Sūrah Baqarah quoted before. It first of
all mentions the share of the children:
The sentence ‘يُوصِيكُمْ
اللَّهُ فِي أَوْلَادِكُمْ’ (God enjoins you about your children) acts
as a prelude to ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’
(a boy’s share is equal to that of two girls’). The word ‘اولاد’
(awlād) denotes both the female and the male offspring. Hence, the correct
sentence analysis in this writer’s opinion is: ‘للذكرمنهم
مِثْلُ حَظِّ الْأُنثَيَيْنِ’ ([among the children] a boy’s share is
equal to that of two girls’).
If this directive had ended
on the words ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’
(a boy’s share is equal to that of two girls’), then it would have meant:
(i) If the children of a
deceased are only a boy and a girl, then the boy will receive twice as much
as the girl.
(ii) If the number of boys
and girls exceed this, then the inheritance shall be divided among them in a
manner that each boy receives twice the share of a girl.
(iii) If there are only
boys or only girls, then the whole inheritance shall be given to whoever
among the two is present.
The third case is also, quite evidently, an essential
outcome of the style and pattern of the verse. If it is said that this money
is to be distributed among beggars and a male beggar is to be given twice
the amount of a female beggar, then this means nothing except that the money
is actually meant for the beggars; hence if all beggars are men, all the
money shall be distributed among them and if all the beggars are women, then
also the same procedure shall be adopted. But the directive does not end
here: an exception immediately follows, thereby amending it.
The sentence ‘فَإِنْ
كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَك’ (and if
there are only girls among the children and they are more than two, then
they shall receive two thirds of the inheritance) is an exception to ‘لِلذَّكَرِ
مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two
girls’). This means that if among the children of the deceased there are
girls, then whether they are two or more, their share is two-thirds. The
words ‘وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’
(and if there is only one girl, then her share is half) are co-ordinated to
this exception by the copulative particle (harf-i-‘atf) ‘وَ’
(and).
This writer has interpreted
the meaning of ‘فَوْقَ اثْنَتَيْنِ’ as ‘two or
more than two’. The reason behind this is that before it, the word ‘اثْنَتَيْنِ’
(two) has been suppressed, which is owing to the style and pattern of the
Arabic language. If, in the language of the Qur’ān, the share of a girl and
of two or more girls are to be stated separately owing to a difference in
their proportions, then there can be two ways of doing so. If an ascending
order arrangement is adopted, then the share of one girl shall be stated
first followed by the share of two girls. If the share of more than two
girls is to be the same as that of two girls, then there is no need to
mention it in words. After specifying the share of two girls after that of
one, owing to a difference in their amount, if a silence follows, then this
is a clear indication that the share of two or more girls is equal to that
of two girls’. If a descending order arrangement is employed, then again,
the words ‘فَوْقَ اثْنَتَيْنِ او اثنتين’ (more
than two or two) are inappropriate as regards the linguistic style and
pattern of Arabic; so after stating the shares of more than two girls, the
share of one girl will be stated. In this style and arrangement, the
commencement of a sentence by ‘فَوْقَ اثْنَتَيْنِ’
bears evidence to a suppression of the word ‘اثْنَتَيْنِ’
before it. A little deliberation shows that the verse readily suggests this
fact. The order of the arrangement demands that ‘اثْنَتَيْنِ’
should come after ‘فَوْقَ اثْنَتَيْنِ’, while
linguistic considerations dictate that ‘اثنتين’
should come before ‘فَوْقَ اثْنَتَيْنِ’. To
fulfill both these requirements, the Qur’ān has suppressed the word ‘اثْنَتَيْنِ’
by adopting an elliptical style of expression in the descending order
arrangement. In the last verse of Sūrah Nisā, these shares are stated in an
ascending order. Accordingly, we observe there that ‘فَوْقَ
اثْنَتَيْنِ’ is suppressed after ‘اثْنَتَيْنِ’:
إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ
فَلَهَا نِصْفُ مَا تَرَكَ وَهُوَ يَرِثُهَا إِنْ ‘
لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ
مِمَّا تَرَكَ (١٧٦:٤)
If a man dies childless
and he has only one sister, she shall inherit half of what he leaves and if
a sister dies childless, then her brother shall be her heir; and if there
are two sisters, they shall inherit two-thirds of what he [or she] leaves.
(4:176)
III
وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا
تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ
أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ
السُّدُسُ مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ (١١:٤)
And if the deceased has
children, then the parents shall inherit a sixth each, and if he has no
children and only the parents are his heirs, then his mother shall receive a
third, and if he has brothers and sisters, then the mother’s share is the
same one-sixth after the payment of any legacies he may have bequeathed and
after discharging any debts he may have left behind. (4:11)
The copulative particle ‘وَ’
(and) in ‘وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا
السُّدُسُ مِمَّا تَرَك’ (and if the deceased has children, then the
parents shall inherit a sixth each) does not co-ordinate this clause either
to ‘فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ’ (and
if there are only girls among the children and they are more than two) or to
‘وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’ (and
if there is only one girl, then her share is half); in fact, it co-ordinates
it to the whole directive above which relates to the shares of the children.
Hence this co-ordination (‘atf) is not copulative (li’l-jami‘), rather it is
emendative (li’l-istidrāk) in nature. The reason is that though it is clear
from the words ‘لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ’
(a boy’s share is twice a girl’s), their actual proportion has not been
indicated. This linguistic style can be appreciated from an example: If it
is said: ‘This money is for the children. Let each boy receive twice as much
as a girl, and let the father receive half the amount’, any person who has
even a little linguistic sense will clearly understand these sentences to
mean that the money is actually meant for the children. If these sentences
had ended without a mention of the father’s share, then all the money would
have been distributed among the boys and girls in the proportion indicated.
But since the father is also to be given half the amount, it is imperative
that the father should first receive this amount and then what remains
should be distributed among the children. It has been explained above that
the expression ‘فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ’
(and if there are only girls among the children and they are more than two)
is an exception to ‘لِلذَّكَرِ مِثْلُ حَظِّ
الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two girls’) and
explains one of its aspects, as has been pointed out before. If this is
correct, then it cannot be taken as an independent clause like ‘…وَلِأَبَوَيْهِ’
(and for the parents …) and it cannot have a different implication than ‘لِلذَّكَرِ
مِثْلُ حَظِّ الْأُنثَيَيْنِ’ (a boy’s share is equal to that of two
girls’). The total implied meaning can be appreciated by an example: ‘In
this amount, Omar, Ali and Saeed have exactly equal shares, and if only Ali
and Saeed are present, then let Ali receive two-thirds and Saeed one-third,
and give ten rupees from this to their sister.’ A little deliberation shows
that though it has been said that in the absence of Omar, Ali and Saeed
shall receive two-thirds and one-third respectively, an amendment at the end
necessitates that ten rupees from the amount should first be given to the
sister, and whatever remains should be distributed between Ali and Saeed
according to their shares.
The verse under discussion
is also of the same style. Consequently, if this is kept in mind, then it is
not at all difficult to comprehend that after the clause ‘وَإِنْ
كَانَتْ وَاحِدَةً فَلَهَا النِّصْف’ (and if there is only one girl,
then her share is half), the shares of the parents and the spouses which are
co-ordinated to the shares of the children by the copulative particle ‘وَ’
(and) shall all necessarily be distributed first and whatever remains shall
only be distributed among the children. Whether among the children, there
are only boys or both boys and girls, the same principle shall apply.
Similarly, if only female offspring are present, then they shall receive
two-thirds or half (whatever the case may be) from the remaining inheritance
and not in any case from the total inheritance.
This is the correct meaning
of the verse. Any person, who after comprehending the implications denoted
by the particle ‘وَ’ (and) in ‘وَلِاَ
بْوَيْهِ’ (and for the parents), and the particle ‘ف’
(then) in ‘فَإِنْ كُنَّ نِسَاءً’ (then if there
are only girls) reads the verse, shall spontaneously reach the same
conclusion.
Consider, next, the
remaining part of the verse:
The word ‘وَلَدٌ’
(walad) in ‘إِنْ كَانَ لَهُ وَلَدٌ’ (if he has
children) and ‘فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ’ (if
he does not have children) is used both for male and female children. In the
Arabic language, this connotation is conventional and customary. There is no
contextual indication, intrinsic or extrinsic, to believe that the word has
specifically been used for male children. Linguists maintain that it is used
in the singular as well as the plural sense and, also, both for the
masculine and the feminine gender. In all the cases mentioned, whether boys
and girls in the indicated numbers are present or absent, these connotations
of the word shall be considered understood.
According to the linguistic
principles of Arabic, after the words ‘فَلِأُمِّهِ
الثُّلُثُ’ (the mother’s share is one-third) the words ‘وَلِاَبيِْهِ
الُّثلُثَان’ (and the father’s share is two-thirds) or words of
similar meaning are suppressed, as is readily suggested by the words ‘وَوَرِثَهُ
أَبَوَاهُ’ (and his parents are his heirs). Hence, this mention is a
clear proof of the suppression. When it is said ‘If the heirs of this money
are only Zahid and Ali, then Zahid’s share is one third’, then after this
there is no need to say that ‘the remaining two-thirds is for Ali’ –
something which is understood by all requisites of common sense.
Also, in this writer’s
view, after ‘فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ
السُّدُس’ (and if he has brothers and sisters, then the mother’s
share is the same one-sixth) the words ‘وَلِاَبِيْهِ
السُّدُس’ (and the father’s share is [also] one-sixth) or words of
similar meaning are suppressed. The contextual indication for this is also
very evident. If brothers and sisters are present, then the mother’s share
is the same one-sixth as in the case when a deceased has children. This also
bears witness to the fact that the father’s share is also the same and that
there is no need to express it in words. If a reader relishes the finer
aspects of a language, he instinctively concludes that if the mother’s share
has reverted to its original amount, so should the father’s share. Thus, the
correct analysis of these verses is: ‘If there are children, then both the
father and the mother shall receive one-sixth. If there are no children and
only parents are the heirs, the mother’s share is a third, but if there are
brothers and sisters, then the mother’s share is the same one-sixth’. One
can very well see how this style effectively induces the mind to
spontaneously jump to the suppressed words: ‘and the father’s share is also
the same one-sixth’.
It is clear from these
verses that in the absence of children, brothers and sisters take their
place. This view is endorsed by the last verses of the sūrah also, but we
shall delay an explanation until these verses are discussed later in this
article.
The word ‘إِخْوَةً’
(ikhwatun), in this writer’s opinion, only signifies the existence of an
entity. It merely specifies that in the presence of brothers and sisters
regardless that they are one, two, or more in number, the parental shares
revert to their original amount. Plurality here does not indicate a
numerical amount, rather it only denotes the existence of an entity. To
quote a Hamāsī poet:
اياك والامر الذي ان توسعت
موارده ضاقت عليك المصادر
iyyāka wa al-amr alladhī
in tawassa‘at
mawāriduhu dhāqat ‘alayka
al-masādirū
(Avoid entangling
yourself in a matter in which if the paths that lead to it (mawarid) are
wide, those that come out (masādir) are narrow.)
The poet has used the words
‘موارد’ (mawārid) and ‘مصادر’
(masādir). It will be outright injustice to this literary composition if it
is interpreted to mean that it urges the reader to refrain from getting
involved in matters whose ‘موارد’ (mawārid) and ‘مصادر’
(masādir) are, after all, three or more. The poet only intends to establish
the existence of a ‘مورد’ (mawrid) and a ‘مصدر’
(masdar) and obviously has no intention to convey their numerical amount.
There may be only one way of getting involved and withdrawing from an affair
and there may be several ways to do so. Similarly, a deceased may leave
behind a brother and a sister and they can also be five or ten. The word
‘إِخْوَةً’ (ikhwatun) encompasses all these
different cases. To convey such meanings, a language employs this style of
plurality. If it is said: ‘If you have children, then give these sweets to
them’, no one will consider this to mean that if the addressed person has
only one child, then he cannot be given the sweets, merely because the word
children has been used by the speaker. Such a meaning can only be inferred
by someone who, instead of appreciating a language in literary perspectives,
starts analysing it on the basis of crude mathematical axioms.
The words ‘مِنْ
بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ’ (after the payments of any
legacies he may have bequeathed, and after discharging any debts he may have
left behind) at the end of the directive imply that if a deceased has
outstanding debts to his name, then first of all they must be paid from the
wealth he has left behind. After this, a part of his legacy which he might
have bequeathed shall be paid, and whatever remains shall be distributed
among the heirs. Though the directive of discharging of debts has been
stated at the end of the verse, it shall be given priority over all
payments. The reason is that a person from whom money is borrowed has a
rightful share in the wealth of a deceased borrower before his death, while
an heir becomes a rightful shareholder in a person’s wealth only after his
death. As far as the precedence of the payment of any bequeathed legacy in
the actual statement of the verse is concerned, it owes much to a touch of
elegance in presentation – a distinctive feature of Qur’ānic Arabic.
IV
آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ
أَقْرَبُ لَكُمْ نَفْعًا فَرِيضَةً مِنْ اللَّهِ إِنَّ اللَّهَ كَانَ عَلِيمًا
حَكِيمًا (١١:٤)
You know not who among
your children and parents are nearest to you in benefit. This is the law of
God. Indeed, God is Wise and All-Knowing. (4:11)
The reason why this part of the verse is juxtaposed
between the ones which state the shares of the heirs is that it should
become clear to people that since the Almighty Himself has indicated who the
heirs of a deceased should be a more just law in this regard could not have
been enacted. Hence, after this Divine Directive, no one has the right to
bequeath his wealth in favour of the heirs designated by the Almighty
Himself. This distribution is based on the immense knowledge and wisdom of
Allah, which encompass all His directives. Man, in spite of his formidable
talents, can neither acquire the vastness of His knowledge nor comprehend
the profundity of His wisdom. If he is a true believer, he must submit to
the Word of God.
This is the real meaning of
the verse. However, a little deliberation shows that the right to obtain an
inheritance is based on the underlying cause of ‘اَقْرَبُ
نَفْعا’ (the closest in benefit). This benefit is by nature present
in parents, children, brothers, sisters, husbands, wives and other close
relations. Hence, in normal circumstances, they will be considered the heirs
to the legacy of a deceased. However, in certain unusual circumstances, if
an absence of benefit in any of these relationships is diagnosed by sense
and reason, then the style and pattern of the verse demands that such a
relative should not become an heir to the legacy. Therefore, in such cases,
if someone is deprived from his share, then it would be perfectly in
accordance with the purport of the verse, to which its words so clearly
testify. In view of this, the Prophet (sws) is reported to have said about
the Idolaters and the People of the Book of Arabia:
لَا يَرِثُ الْمُسْلِمُ الْكَافِرَ وَلَا الْكَافِرُ
الْمُسْلِمَ (بخاري: رقم
٦٧٦٤)
A Muslim cannot be an
heir of a Kāfir nor can a Kāfir be a Muslim’s. (Bukhārī: No. 6764)
In other words, after the
Quraysh and the People of the Book were left with no excuse to deny the
truth which had been unveiled to them in its ultimate form, their enmity and
hostility became very clear. Consequently, the benefit of kinship between
them and the Muslims stood completely severed. Hence, they could not inherit
from one another.
A secondary guidance which
is also obtained from this verse is that if in certain cases legacies are
left over after distribution and the deceased has not made anyone an heir in
them, then they too should be distributed to the ‘اَقْرَبُ
نَفْعا’ (the closest in benefit). This is precisely what the Prophet
is reported to have said:
أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا فَمَا بَقِيَ فَهُوَ
لِأَوْلَى رَجُلٍ ذَكَرٍ. (مسلم: رقم
١٦١٥)
Give the heirs their
share and if something remains, it is for the closest male [relative].
(Muslim: No. 1615)
V
وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِنْ لَمْ يَكُنْ
لَهُنَّ وَلَدٌ فَإِنْ كَانَ لَهُنَّ وَلَدٌ فَلَكُمْ الرُّبُعُ مِمَّا
تَرَكْنَ مِنْ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ وَلَهُنَّ
الرُّبُعُ مِمَّا تَرَكْتُمْ إِنْ لَمْ يَكُنْ لَكُمْ وَلَدٌ فَإِنْ كَانَ
لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُمْ مِنْ بَعْدِ وَصِيَّةٍ
تُوصُونَ بِهَا أَوْ دَيْنٍ (١٢:٤)
And to you belongs a
half of what your wives leave, if they die childless. And if they have
children, a quarter of what they leave shall be yours after payment of any
legacies they may have bequeathed and after discharging any [outstanding]
debts. Your wives shall inherit a quarter of what you leave, if you die
childless. If you have children, then they shall inherit one-eighth, after
payment of any legacies you may have bequeathed, and after discharging any
of your [outstanding] debts. (4:12)
The shares of the spouses
are very clearly stated and need no explanation. After the payment of debts
and any bequeathed legacy, these shares shall be given from the total
remaining inheritance of a deceased.
VI
وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوْ امْرَأَةٌ
وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا
أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ
يُوصَى بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ وَصِيَّةً مِنْ اللَّهِ وَاللَّهُ
عَلِيمٌ حَلِيمٌ (١٢:٤)
If a man or a woman is
made an heir on account of his [or her] kalālah relationship [with the
deceased] and he [or she] has one brother or sister, then the brother or
sister shall receive a sixth, and if they be more than this, then they shall
be sharers in one-third, after payment of any legacies bequeathed and any
[outstanding] debts – without harming anyone. This is a command from God,
and God is Gracious and All-Knowing. (4:12)
The most important word in
this verse is ‘َكَلَالَة’ (kalālah). Originally,
it is a ‘مصدر’ (verbal noun) in the meaning of ‘كلال’
(kalāl) ie, ‘feebleness and frailty’. To quote a line from Aa‘shā’s poetry:
فآليت لا ارثى لها من كلالة
fa ā laytu lā
arthī lahā min kalālatin
(Then I swore that I
shall not show any mercy on her because of her feebleness and frailty.)
Mutammim Ibn Nuwayrah says:
فكانها بعد الكلالة والسرى
علج تغاليه قذور ملمع
faka annahā ba‘da al-kalālati
wa al-surā
‘iljun tughālīhi qadhūrun
mulmi‘ū
(That [she] camel after
the night’s tiring journey is indeed like a wild ass whom even a pregnant
donkey tries to overtake.)
Figuratively, linguists
attribute the following three meanings to this word:
i) A person who leaves
behind neither parents nor children.
ii) Any relationship which
is not through the parents or children.
iii) All of one’s relatives
except the parents and children.
Zamakhsharī writes in his
Kashshāf:
ينطلق على ثلاثة على من لم يخلف ولداً ولا والداً، وعلى من
ليس بولد ولا والد من المخلفين، وعلى القرابة من غير جهة الولد والوالد. ومنه
قولهم: ما ورث المجد عن كلالة، كما تقول: ما صمت عن عيّ، وما كف عن جبن.
والكلالة في الأصل: مصدر بمعنى الكلال، وهو ذهاب القوّة من الإعياء. قال الأعشى:
فآليت لا ارثى لها من كلالة ’ فاستعيرت للقرابة من غير جهة
الولد والوالد، لأنها بالإضافة إلى قرابتهما كالة ضعيفة، وإذا جعل صفة للموروث
أو الوارث فبمعنى ذي كلالة. كما تقول: فلان من قرابتي، تريد من ذوي قرابتي.
ويجوز أن تكون صفة كالـهجاجة والفقاقة للأحمق.
‘كلاله’
(kalālah) has three meanings: It is an adjective used for a person who
leaves behind neither parents nor children; it also means all the relatives
of a deceased except his parents and children, and it also denotes the
relationships which are not through [the deceased’s] parents or children.
The Arabs say: ‘ما ورث المجد عن كلالة’ (mā warith
al-majda ‘an kalālatin: he could not become an heir to nobility because of a
distant relationship). Likewise, you say: ‘ماصمت عن عى’
(mā samata ‘an ‘ayyin: he did not become quiet because he was unable to
speak and ‘ماكف عن جبن’ (mā kaffa ‘an jubnin: he
did not stop because of cowardice). And ‘كلالة’ (kalālah)
is a ‘مصدر’ (masdar: verbal noun) meaning ‘كلال’
(kalāl). ‘كلال’ (kalāl) means loss of strength
because of weakness. Aa‘shā says: ‘فآليت لاارثى لها من
كلالة’ (fa ā laytu lā arthī lahā min kalālatin: then I swore that I
shall not show any mercy on her because of her feebleness and frailty).
Later, it was figuratively used for the relationship which is not through
the parents and children. The reason for this being that such a relationship
is not as strong as the one through the parents and children. And when it is
used as an adjective of a legatee or a legator it means ‘ذو
كلالة’ (dhū kalālah). Similarly, you say ‘فلان من
قرابتى’ (falānun min qarābatī) ie, ‘فلان من ذوى
قرابتى’ (falānun min dhawī qarābatī), and it can also be an adjective
like ‘هجاجة’ (hajājah) and ‘فقاقة’
(faqāqah) meaning ‘foolish’.
This writer could not find
the word used in the first meaning, ie ‘a person who does not leave behind
either parents or children’ in pre-Islamic Arabic poetry though this usage
is grammatically correct.
It is used at many
instances in pre-Islamic Arabic poetry in the second meaning, ie the
relationship not through the parents or the children.
To quote Tirmāh:
يهز سلاحالم يرثه كلالة
يشك به منها غموض المغابن
yahuzzu silāhan lam
yarith hu kalālatan
yashukku bihi minhā
ghumūda al-maghābinī
(He waves his weapon
which he did not inherit because of a distant relationship. Through it he
pierces the part concealed in her thighs.)
‘Āmir Ibn Tufayl says:
وما سود تنى عامر عن كلالة
wa mā sawwadatnī ‘āmirun
‘an kalālatin
(And the tribe of ‘Āmir
did not make me the chief because of a distant relationship.)
According to Lisānu’l-‘Arab:
والعرب تقول: لم يرثه كلالة اي لم يرثه عن عرض بل عن قرب
واستحقاق
The Arabs say: ‘لم
يرثه كلالة’ (lam yarith hu kalālatan), ie owing to his distant
relationship, he did not become an heir, but he inherited the legacy because
of nearness and entitlement to it.
The third meaning
attributed to it, ie all relatives of a person except his parents and
children is verified by many examples in pre-Islamic Arabic literature.
A Hamāsi poet, Yazīd Ibn
al-Hakam, while admonishing his son says:
والمرء يبخل بالحقوق وللكلالة مايسيم
wa al-mar’u
yabkhalu bi’l-huqūqi wa li’l-kalālati mā yusīm
(Man shows miserliness in
discharging his duties and after his death, his distant relatives take away
his animals which graze in the forests.)
Azharī, has quoted a poet’s
couplet:
فان ابا المرء احمى له
ومولى الكلالة لا يغضب
fa inna abā’ al-mar’i
ahmā lahū
wa mawlā al-kalālati lā
yaghdabū
(If a person is
oppressed and persecuted, it is his father who, in his support, is
infuriated the most. Kalālah relatives are not infuriated to this extent in
such a matter.)
To quote a Bedouin:
مالى كثير و يرثنى كلالة متراخ نسبهم
I have a lot of wealth
and my heirs are distant relatives.
Imam Muslim has quoted the
following words in a Hadīth narrated by Jābir (rta):
يا رسول الله ’ إنما يرثنى كلالة (مسلم: رقم
١٦١٦)
O Prophet of Allah !
only kalālah are my heirs. (Muslim: 1616)
Many Āhadīth, quoted in
Tafsīr works, endorse this meaning. Abū Bakr Jassās writes in his
Ahkāmu’l-Qur’ān:
وروى عن ابى ابكر الصديق وعلى وابن عباس في احدي الروايتين
ان الكلالة ماعدا الوالد والولد ’ وروى محمد بن سالم عن شعبى عن ابن مسعود انه
قال : الكلالة ماخلا الوالد والولد ’ وعن زيد بن ثابت مثله
In this regard, there
are two narrations attributed to Abū Bakr, ‘Alī and Ibn Abbās. One of them
says that all except the father and the children are ‘كلاله’
(kalālah) and Muhammad Ibn Sālim reports from Sha‘bī, who reports from Ibn
Mas‘ūd that all except the father and the children are ‘كلاله’
(kalālah) and Zayd Ibn Thābit has also reported this meaning.
Now, let us consider the
verse under discussion. Though our jurists have unanimously preferred the
first meaning here, yet the verse itself testifies against this meaning. If
we carefully analyze verses 11 and 12 of Sūrah Nisā from ‘يُوصِيكُمْ
اللَّهُ فِي أَوْلَادِكُمْ’ (God enjoins you about your children), it
is observed that after a mention of the shares of the children and the
parents, the Almighty has directed us to carry out the distribution of
legacy by the words ‘مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا
أَوْ دَيْنٍ’ (after the payment of any legacies he may have
bequeathed and after discharging any debts he may have left behind). The
directive is repeated in the shares of the spouses: ‘مِنْ
بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ’‘مِنْ
بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ’. A little contemplation
shows that in all these instances the verb is used in the active voice and
the antecedents of ‘يُوصِي’ (yūsī), ‘يُوصِينَ’
(yūsīna) and ‘تُوصُونَ’ (tūsūna) are clearly
stated in each of these sentences. But in the verse of ‘كلاله’
(kalālah), the verb is used passively. This departure tells us that the
subject (fā‘il) of the verb ‘يُوصَى’ (yūsā) ie,
the legator in this verse is not stated. Therefore, in this verse, the word
‘كلاله’ (kalālah) cannot be regarded as an
adjective for the deceased. The change conclusively testifies that the
Qur’ān has not used the word in its first meaning, ie a person who does not
leave behind either parents or children.
As far as the second and
third meanings are concerned, any of the two can be preferred on the basis
of a more delicate grammatical construction, because in both cases the
implied meaning remains the same. Hence in this verse the verb ‘يُورَثُ’
(yūrathu), in the opinion of this writer, is from the if‘āl category used in
its passive form and ‘كلاله’ (kalālah) is ‘مفعول
له’ (maf‘ūl lahū: an accusative on account of which something is
done). ‘كان’ (kāna) here is ‘ناقصه’
(nāqisah: incomplete) and ‘يُورَثُ’ (yūrathu) is
its ‘خبر’ (khabr: inchoative). ‘رجل
او امرأة’ (rajulun aw imra’atun) are the ‘اسماء’
(asmā: nouns) of ‘كان’ (kāna). Keeping in mind
this analysis of the verse, it can be translated thus: ‘and if a man or a
woman is made an heir because of his (or her) kalālah relationship...’
Naturally, only the
deceased person will have the right to make someone his heir. Since the
second object of the passive verb ‘يُورَثُ’ (yūrathu)
is not stated, linguistic principles dictate that, in the given context, the
verse should only mean that a ‘كلاله’ (kalālah)
relative can be made an heir together with the rightful heirs as well in
cases when a portion of the inheritance remains after it has been
distributed among the rightful heirs and also when none of them is present.
Consider now the next part
of the verse: وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ
مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي
الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ يُوصَى بِهَا أَوْ دَيْن (if a man or
a woman from the associations of a single relationship is made an heir and
has one brother or one sister, then he (or she) will be given one-sixth of
what the heir himself receives and if the heir has more than one brother or
sister, then they shall share equally in a third of what the heir himself
receives, after all outstanding debts are paid off and the legacies he may
have made distributed). After this, there remains no need to say that the
remaining five-sixths or two-thirds (whatever might be the case) shall be
given to the person whom the deceased had made his heir. If it is said:
‘Ahmad has made your son the heir of his wealth, but if he has a brother
then the brother shall be entitled to a third of his share’, it clearly
means that after the brother receives his share, the remaining money should
be given to the son who has actually been made the heir.
This directive of the
Qur’ān has a very sound reason behind it. Naturally, a deceased can choose
to make any brother, sister, aunt or uncle (the kalālah relatives) his heir.
But there can be other brothers or uncles besides the one who has been made
an heir by a deceased. The case is no different for sisters or aunts also. A
person can prefer any uncle or aunt. But the Almighty does not approve of
totally depriving all other associations of the same relationship of any
share. Therefore, if a person, for example, has made one of his paternal
uncles, Saeed, the heir to his remaining estate in the presence of two other
paternal uncles, then the two shall share equally in a third of what Saeed
receives, and Saeed himself shall receive the remaining two-thirds.
Consider now the remaining
part of the verse. The words of the Qur’ān are: ‘غَيْرَ
مُضَارٍّ وَصِيَّةً مِنْ اللَّهِ وَاللَّهُ عَلِيمٌ حَلِيمٌ’. These
words at the end of the verse serve as a warning that making someone an heir
should not be a source of harm for any of the rightful heirs. To dispel any
element of foul play, the Almighty Himself has fixed the shares of the real
heirs. Since, according to the verse, a person can make any of his ‘كلاله’
(kalālah) relatives his heir, it is emphatically stated that, while
exercising this prerogative, the rights of a rightful heir should not be
usurped – this is not a piece of advice from an earthling. It is what the
Creator of the heavens and the earth has directed us about. If any of His
creation deliberately deprives a rightful claimant from his share, then he
should be aware that God has knowledge of all his deeds, and, if he errs
unintentionally, the Almighty is Gracious and Merciful. He does not burden a
person with a responsibility he cannot fulfill. All His directives bring
ease and facility for His creation and are not meant to put them through
hardship and difficulty.
VII
يَسْتَفْتُونَكَ قُلْ اللَّهُ يُفْتِيكُمْ فِي الْكَلَالَةِ
إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ مَا
تَرَكَ وَهُوَ يَرِثُهَا إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا
اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ وَإِنْ كَانُوا إِخْوَةً
رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ يُبَيِّنُ
اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ (١٧٦:٤)
People ask your
pronouncement. Say: God enjoins you about your kalālah heirs that if a man
dies childless and he has only a sister, then she shall inherit half of what
he leaves and if a sister dies childless, then her brother shall be her
heir; and if there are two sisters, then they shall inherit two- thirds of
what he [or she] leaves. If there are many brothers and sisters, then the
share of each male shall be that of two females. God expounds unto you that
you err not and God has knowledge of all things. (4:176)
Since, according to the
interpretation given above, all brothers, sisters, uncles and aunts are ‘كلاله’
(kalālah) relatives and a person can make anyone of them his heir, it is
possible that he might prefer an aunt or an uncle over his brothers and
sisters. If a deceased has children, then the nature of the directive is
proper in all respects, but if the deceased has no children and has brothers
and sisters, then this authority vested in him stands objected to. It is an
unquestionable reality that after one’s children, one’s brothers and sisters
among his ‘كلاله’ (kalālah) relatives are nearest
to him. Common sense demands that in such a case they should receive a large
portion of the legacy. Verses 11-12 of Sūrah Nisā clearly state that if a
deceased has brothers and sisters, then the parents shall receive a sixth
each. Since this share is the same as what they receive in the presence of
children, the question arises whether it has still been left to a person to
make the brothers and sisters his heirs, or can he deprive them of a share
in his wealth. While explaining verses 11-12 of Sūrah Nisā, it was written
that the style of the verses is such that in the absence of children, the
brothers and sisters of a deceased should be his heirs. But obviously, the
meaning unfolded by a particular style cannot be as certain and definite as
the one which is directly stated in words. In the absence of children, the
question about the shares of brothers and sisters can even arise today. It
had arisen in the time of the Prophet (sws) as well. Jabīr (rta) reports:
دَخَلَ عَلَيَّ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ
وَسَلَّمَ وَأَنَا مَرِيضٌ لَا أَعْقِلُ فَتَوَضَّأَ فَصَبُّوا عَلَيَّ مِنْ
وَضُوئِهِ فَعَقَلْتُ فَقُلْتُ يَا رَسُولَ اللَّهِ إِنَّمَا يَرِثُنِي
كَلَالَةٌ فَنَزَلَتْ آيَةُ الْمِيرَاثِ. (مسلم:رقم
١٦١٦)
I was sick and in a
state of unconsciousness when the Prophet of Allah arrived at my place. He
performed ablution and the people sprinkled some water over me from which
the Prophet was performing his ablution. When I came to my senses, I said: O
Prophet of Allah all my heirs are kalālah. At this, this verse
of inheritance was revealed. (Muslim: No. 1616)
From the words: ‘O Prophet
of Allah all my heirs are kalālah. At this, this verse of inheritance was
revealed’ of the above Hadīth, it is evident that among the ‘كلاله’
(kalālah) relatives the question particularly concerned his brothers and
sisters and the last verses of Sūrah Nisā were revealed as a result of this
inquiry.
A special style of the
Qur’ānic verses is that in them certain questions are stated in a very
concise and compact form. The actual nature of the question and its
background is revealed by the answer which the verses subsequently give. By
not taking into consideration this style, our commentators have come across
many difficulties in understanding ‘قُلْ اللَّهُ
يُفْتِيكُمْ فِي الْكَلَالَةِ’ (God enjoins you about your kalālah
relatives). Here also, if only the answer is analyzed, the meanings the
verse convey are very evident. The verse is of the same style and pattern as
‘يُوصِيكُمْ اللَّهُ فِي أَوْلَادِكُمْ’ (God
enjoins you about your children). In the latter case, the directive is about
the children as the heirs of a deceased while in the former case the
pronouncement is about ‘كلاله’ (kalālah) relatives
as the heirs of a deceased. The article ‘ال’ (alif
lām) defines the word ‘كلاله’ (kalālah) in this
verse, which testifies to the fact that the question concerns some specific
relations among the ‘كلاله’ (kalālah) relatives
and the answer shows that these specific relations are the deceased’s
brothers and sisters. Verse 12 of Sūrah Nisā has already empowered a person
to bequeath a part of his legacy in favour of ‘كلاله’
(kalālah) relatives like uncles, aunts, brothers and sisters. Here, a
particular case is mentioned after the general directive. Considering this,
the correct meaning of the verse is: ‘Say, Allah gives you a pronouncement
about brothers and sisters among the kalālah relatives’. An example of this
Qur’ānic style and construction can be seen in verse 189 of Sūrah Baqarah.
It should be clear that the
words ‘إِنْ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ’ (if
a man dies childless...) do not state the meaning of ‘كلاله’
(kalālah); they merely impose a condition which must be fulfilled if the
brothers and sisters are to receive a share in a legacy. Just as in the
verse ‘فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ
أَبَوَاهُ’ (and if he does not have children, and his parents are his
heirs), a condition is imposed that if the deceased is childless and only
his parents are his heirs, then they shall receive such and such shares.
Similarly, in the given verse, a condition is stated that if a person dies
childless, and he has brothers and sisters, then their share is such and
such. Also evident from the condition in the verse is that brothers and
sisters are heirs of a deceased, only in case he dies childless. If he
leaves children, then they do not have any share in his wealth except if a
deceased makes a bequest in their favour according to the general directive
mentioned in verse 12 of Sūrah Nisā.
The shares of brothers and
sisters stated here are the same as those of the children stated earlier.
Also, the style of the words ‘كَانُوا إِخْوَةً رِجَالًا
وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ وَإِنْ’ (and if
there are many brothers and sisters, then the share of each male shall be
equal to that of two females’) bears witness to the fact that these shares
also shall be given after the parents and the spouses are handed over their
shares. The relevant arguments are presented in the section which deals with
the shares of the children. Hence, if the deceased only has sisters, then
two-thirds or one half (whatever the case may be) of the share meant for the
brothers and sisters shall be given to the sister or sisters.
We have indicated earlier
that it is evident from verse 12 of Sūrah Nisā that in the absence of
children, the brothers and sisters of a deceased take their place. This
particular verse of Sūrah Nisā conclusively proves the premise. It was
possible to misinterpret it from the style of verses 11-12, but here all
doubts have been removed as to what the words imply. The Qur’ān, therefore,
says:
يُبَيِّنُ اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ
شَيْءٍ عَلِيمٌ (١٧٦:٤)
God explains to you that
you err not and God has knowledge of all things. (4:176)
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