by Mary F. Radford*
Abstract: The inheritance rights of women in the Anglo-American system have evolved from a system whose primary purpose was the support of women to one in which women enjoy the same rights to inherit and own property as their male counterparts. The laws of Judaism and Islam contain elements of these two Anglo-American approaches, with a focus on support under Jewish law and on ownership (although not equal ownership) under Islamic law. In this article Professor Radford gives a brief overview of the legal systems of Judaism and Islam and of the place of women in these systems. She then provides a detailed description of the ways in which the laws of Judaism and Islam govern the rights of wives, mothers, daughters, and other female relatives to inherit property.
In the Western tradition, women generally, and married women in particular,1 had little or no place in the order of intestate succession.2 Until the end of the sixteenth century, women were basically denied the right to inherit property.3 Modern times have seen a dra[*PG136]matic reversal of this trend. Not only can women now inherit property equally with their male counterparts, but married women (and spouses generally) are favored in their ability to share the property formerly owned by the deceased spouse or by the couple during their marriage.
This reversal is illustrated by the current structure of inheritance laws in the United States. If a deceased spouse dies without a will, state intestacy laws guarantee that a portion of the estate will pass to the surviving spouse.4 Community property jurisdictions give both spouses equal ownership of the property that is acquired by the married couple during the course of the marriage5 and, at death, the surviving spouse retains her one-half ownership in the property of the marriage.6 In most separate property jurisdictions, the surviving spouse is allowed to elect to take a specified portion of the deceased spouse’s estate in lieu of taking under the decedent’s will.7 Throughout the United States, the surviving spouse is allowed to take from the estate amounts needed for his or her maintenance for a period following the death of the first spouse.8 Thus, these laws guarantee a woman both the ability to inherit property and, in some circum[*PG137]stances, the right to be supported after the death of a male upon whom she may have been dependent.
The advancements in women’s inheritance rights in modern Western law were presaged centuries earlier by the laws of Judaism and Islam. Long before women were given the right to inherit property in Western jurisdictions, the laws of these two religions had established a limited form of inheritance and support rights for the surviving wife and female relatives of a decedent.9 This article describes and compares the inheritance rights of women under the two religions. Part I is an overview of the sources of law for the two religions. Part II briefly describes the place women hold in Judaism and Islam. Part III summarizes the concept of marriage in the two religions and the nature of a wife’s rights to hold property within the marriage, as these rules reflect the philosophy behind women’s general rights to inherit property. Part IV outlines the basic structure of inheritance law in both religions and then describes in detail the inheritance rights of surviving wives and other female relatives of the decedent. Part V concludes with a brief discussion of the way in which the inheritance rights of women that were established by the laws of these two religions are played out in modern societies whose laws and customs are based on the legal precepts of Judaism and Islam.
I. Sources of Law
At the outset, it is necessary to explain the terms “Jewish” and “Islamic” law. The Jewish law described in this article is not to be confused with the law of the State of Israel. In 1965, Israel passed a comprehensive Succession Law that embodies theories from a variety of Western countries and that does not concur in every respect with traditional Jewish law.10 Nor is Islamic law to be confused with the law that is followed today in many Islamic countries. These countries in many cases have adopted, either officially or unofficially, legal systems that vary in substantial ways from traditional Islamic law.11 Rather, the terms “Jewish law” and “Islamic law” refer to the body of law in each [*PG138]religion that stems from divinely revealed sources and the interpretation and expansion of these revelations by scholars, community members, and local custom.
The structure of the law of Judaism and of Islam is similar in that the basic written source of each is believed to have been revealed to mankind by God.12 The divine revelations in both of these religions were made exclusively to one man13—Moses, in the case of Jewish law,14 and Mohammed, the Prophet,15 in the case of Islamic law. In each religion, the precepts of the divine source have been and continue to be interpreted and expanded over time by the combination of community practice and scholarly debate.16 In addition, the law of both religions was affected by the existing legal systems of the societies within which these religious laws developed.17
[*PG139]A. Sources of Jewish Law
The Jewish law, referred to as a whole as the Halakhah, is based in the Torah.18 The written component of the Torah19 (referred to also as the Pentateuch20) is the five Books of Moses:21 Genesis, Exodus, Leviticus, Numbers, and Deuteronomy.22 The text of these books was conveyed to Moses on Mount Sinai, along with a large body of “oral law” that was not reduced to writing for several centuries.23 Where gaps or inconsistencies appeared in the written law, the process of midrash (interpretation and construction) was used for clarification and for filling out the skeletal structure.24 In approximately 200 c.e., [*PG140]Rabbi Judah the Prince produced a codex of laws that was recognized as an authoritative statement of the oral law.25 This Mishnah consists of six orders, the third of which is devoted primarily to women and the family.26 Baba Bathra, which is the third tractate of the fourth order,27 deals with inheritance.28 Over time, as the Torah and the Mishnah became the subject of increasingly sophisticated scholarly debate, the scholarly commentary was itself written down to serve as a further source for clarification of the law. The Talmud29 is the collection of this discursive commentary and is noteworthy in that the dissenting as well as the consensus opinions are recorded for use in future debate.30 [*PG141]After the compilation of the Talmud,31 scholars continued to develop the Jewish law and to record it in the form of Responsa32 and Com[*PG142]mentaries.33 Perhaps the best known of the Commentaries is that of Maimonides.34
Scholars were not the only ones who contributed to the development of Jewish law. Consistently followed courses of conduct became recognized as minhag or legal norms.35 Sometimes these courses of conduct were codified in local enactments, known as takkanot.36 The takkanot were sometimes initiated in reaction to changes in social conditions that proved inconsistent with previously recorded law.37
One scholar describes the complexity of Jewish law as follows:
Jewish law, then is the sum total of the law laid down in Scripture with interpretations and amplifications thereof in Talmud and Midrash, and the reforms and innovations superadded by Talmudical law, the post-Talmudic codes, the Commentaries and the Responsa, the customary laws and the takkanot of the various communities, and last—but not least—the rational and ethical principles deduced from them.38
[*PG143]B. Sources of Islamic Law
The body of Islamic law39 is referred to as Shari’a or “the clear path.”40 This body of law emanates primarily from four sources: the Qur’an, Sunna, Qiyas, and Ijma.41 The Qur’an is the word of God as recited by Mohammed, His Messenger (hereinafter the Prophet), beginning about 610 c.e.42 The Qur’an was revealed to the Prophet over a period of 23 years, during which time he resided in both Mecca and Medina.43 The Qur’an consists of 6219 verses.44 About five hundred of these verses are legalistic in tone and some eighty verses deal exclusively with legal topics.45
The second source of Islamic law, the Sunna, is described as the practice of the Prophet.46 Essentially, the Sunna is comprised of the [*PG144]“sayings of the Prophet; his deeds; and his silent or tacit approval of certain acts which he had knowledge of.”47 The Sunna reaffirm the customary law that was prevalent in Arabia at the time of the Prophet’s life, to the degree that that law was not contradicted by him.48 The Hadith, which is the written record of the Sunna,49 was not compiled until many years after the death of the Prophet.50 Those who transcribed the Hadith did so by collecting the first-hand testimony of those who had lived with and observed the Prophet (his “Companions”) and the second-hand testimony of the second and third generation followers of the original Companions.51 Some controversy exists as to whether the human element involved in narrating and interpreting the Prophet’s words and actions may have compromised the accuracy of the Hadith.52 Traditionalists, however, look [*PG145]solely to the Qur’an and the Sunna as the source of Islamic law53 and deny “[t]he possibility of error, bias or evil intent” in the Hadith.54
Qiyas and Ijma, the third and fourth sources of the law, are based in human analysis rather than divine revelation. Qiyas involves an expansion of the law through analogical reasoning, or the application of a textual rule from one situation to a different situation.55 Qiyas can be accomplished only if the underlying purpose of the rule itself is clear.56 A common example of the use of Qiyas is the expansion of the express prohibition against the use of alcohol to include a prohibition against the use of drugs which, like alcohol, impair the user’s control of his actions.57
Ijma is the consensus reached by scholars and jurists as to a rule of law.58 As with Qiyas, Ijma involves the application of human reasoning to the Qur’an and Sunna. Consequently, although the Ijma may have represented the unanimous opinion of a certain age, “ijma is not simply the consensus of all past jurists.”59
There are several distinct movements and schools of Islamic law. For purposes of this article, it is important to note that two schools—the Sunni and the Shi’i—developed soon after the death of the Prophet and their origin was basically political in nature.60 The Sunni school is that followed by the vast majority of Muslims today and is the school of thought that is described in this article, unless indicated otherwise.61 The Shi’i school is practiced by a significant minority of [*PG146]Muslims and contains certain critical distinctions relating to inheritance rights that will be described as appropriate.
II. Women’s Place in the Two Religions
The status of women under both Judaism and Islam is the subject of continuing debate. In both arenas, there are those who praise the religion for the dignified status to which it elevates women and those who criticize the religion for its sexist and discriminatory treatment of women. As will be noted, a modern resurgence of fundamentalism in both religions reinforces and emphasizes to women’s detriment religious rules and historical traditions that relegate women to an inferior status.62
A. Women in Judaism
Dissonant attitudes about the status of women in Judaism appear as early as the creation accounts in the Book of Genesis.63 In Genesis 1:27, God created man “in his own image, in the image of God He created him, male and female he created them.” This passage would seem to give equal dignity to the two genders.64 Yet later in the same book, God is said to have created man first, from the “dust of the ground,”65 and then later created woman from Adam’s rib,66 because “it is not good that the man should be alone; I will make him a help meet for him.”67 Thus, woman appears in the creation story both as man’s equal and as secondary to him.
The Book of Genesis also lays the groundwork for the focal point that marriage plays in Jewish life.68 The creation chapter states that [*PG147]the bond of marriage between husband and wife overrides the parent-child relationship.69 This chapter arguably allots an elevated status to a wife, for whom “a man shall leave his father and his mother.” 70 However, this passage, which speaks of the married couple as becoming “one flesh,” may also have been a portent of the English common law concept that a woman’s legal existence was subsumed into that of her husband at marriage.71
The Book of Leviticus contains a series of rules relating to bodily impurity that apply both to men and to women.72 This book is the origin of the ostracization of a woman while she is menstruating (niddah).73 The Book of Leviticus also describes unequal periods of impurity that follows a woman giving birth to a child.74 The period of impurity for a woman who has given birth to a female child is double that of a woman who has given birth to a male child.75
Several women appear throughout the Bible who are powerful in their own right.76 Yet Biblical references to women in general indicate that a woman’s highest honor is to be found in her role as wife and mother.77 The Mishnah order that deals with women concentrates on [*PG148]marriage and divorce.78 The Talmud emphasizes further “the husbands’ and fathers’ duties with regard to the maintenance and care for his wife and daughters.” 79 The Talmud also adds to the role of the woman/wife/mother the important task of freeing her husband from mundane household tasks so that he will be free to study the Torah.80 Generally, women did not study the Torah, although history records the story of one woman scholar, Beruriah, who was purportedly able to “absorb over three hundred laws each day, . . . some of her legal decisions were accepted as Halachah, despite the opposing views of some Rabbis.”81
The status of Jewish women in modern times varies in Reform, Conservative, and Orthodox Judaism.82 For example, Orthodox Jews continue to restrict women from participating in religious rituals even though Reform Jews now admit women to the rabbinate.83 Jewish feminists continue to fight for the equalization of women’s status in the religion against the traditionalist view that this equalization is contrary to talmudic legislation.84
Jewish women, particularly in Israel, remain threatened by the political influence that may be wielded by Jewish “Ultra-Orthodox fundamentalists.”85 Like Islamic fundamentalism,86 Jewish fundamentalism dictates an inferior and submissive status for women.87 Jewish fundamentalism “does not explicitly declare that a wife must be submissive and obedient to her husband [but] the overall structure of marriage and divorce laws delegates such a degree of authority and power to the husband as to allow him effectively to coerce his wife’s obedience.”88 Additionally, Jewish fundamentalists, in the name of “guard[ing] women’s chastity [and] prevent[ing] women from [*PG149]‘tempting’ men into adultery,”89 segregate the sexes, relegate women to the home, and restrict women’s public dress.90
B. Women in Islam
One scholar has noted that “[t]o attempt to talk about women in Islam is of course to venture into an area fraught with the perils of overgeneralization, oversimplification, and the almost unavoidable limitations of a Western bias.”91 Islam is criticized by some as having created a “male-dominated society”92 and praised by others as having “elevated the status of women, providing them with an independent legal and spiritual identity.”93 The Prophet’s legislation is praised by some as having declared “a new equal status for women in society,”94 yet criticized by others as setting forth a set of rules on family life with “almost all of them favoring men.”95 A brief examination of the status of women in pre-Islamic Arabia reveals that, while Islam generally improved the status of women in that society, it may also have resulted in imposing severe restrictions on the rights that some pre-Islamic women enjoyed.96
The primary governmental unit of pre-Islamic Arabia was the tribe.97 The tribes were either settled tribes or nomads (the latter often referred to as “Bedouin”).98 Children were viewed as children of the tribe,99 and the members of the tribe were bound to one another by blood ties,100 through either a patrilineal or a matrilineal [*PG150]system.101 Marriage was a “flexible, loose institution with no strict, uniformed rules”102 and a woman’s role within a marriage ranged from that of property103 to “free agent.”104 Infanticide, primarily female infanticide, was a common practice.105 Polygamy was also prevalent.106 In those systems in which a wife was regarded as property, women had no property or inheritance rights and could be divorced at will by their husbands.107 In the matrilineal systems, however, some rights of inheritance in women most likely existed.108 In Mecca, the Prophet’s first wife was a successful businesswoman “who had inherited a large fortune from her late husband.”109
The Prophet replaced the tribe with the family as the primary social unit.110 He adopted the patrilineal system as the framework for [*PG151]his scheme of inheritance,111 but he established explicit inheritance rights for women.112 The Prophet restricted to four the number of wives that a man could have and forbade a woman from having more than one husband.113 He abolished the practice of female infanticide.114
Strong women played an important role in the life of the Prophet and the foundation of the religion. The Prophet’s first wife, Khadija, supported his cause and became known as “the Mother of all believers.”115 Another of his wives, A’isha, is portrayed as a powerful influence, both on the Prophet and on his followers.116 The Prophet’s daughter, Fatima, stood by him during his life and played a political [*PG152]role after his death.117 Despite these forceful feminine influences, some believe that women as a class do not fare particularly well in those segments of the Qur’an and the Shari’a that deal with topics other than inheritance and property rights. This belief is summarized as follows:
The purpose of women, according to the Koran, is to compliment men. Women’s rights to employment and participation in public life, freedom of movement and freedom of organization, are severely restricted through a combination of the Shari’a principles of qawam (men’s guardianship over women),[118] hijab (the veil) and segregation between men and women. Examples of women’s inequality can be found in the administration of justice and in certain aspects of family law. A woman’s judicial testimony is deemed to be of half the value of that of a man, in civil cases, and is not accepted at all in serious criminal cases.[119] In certain types of wrongful homicide, monetary compensation paid to the heirs of a female victim is less than that paid to the heirs of a male victim and a woman’s share in inheritance is half that of a man’s. Additionally, no woman may hold any public office which involves exercising authority over men.120
In addition, one verse of the Qur’an seemed not only to confirm the inferior role of women but also to sanction wife-beating. This verse states:
Men are the maintainers of women because Allah has made some of them to excel others and because they spend out their property; the good women are therefore obedient, [*PG153]guarding the unseen as Allah has guarded, and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great.121
Finally, proponents of the practice of female circumcision cite this “tradition as ‘a duty on every Muslim woman.’”122
The status of women in Islam is complicated by the fact that scholarly interpretation of the Qur’an may have been subject to the biases of those who stood to benefit by a society that favored their gender.123 Women played no part in interpretation of the Qur’an, and their absence “has been mistakenly equated with voicelessness in the text itself.”124 Furthermore, social norms in many male-dominated countries may have obscured many of the original purposes of the Qur’anic legislation.125 Former Prime Minister of Pakistan, Benazir Bhutto, claims that the subjugation of women in Islam “has got nothing to do with the religion, but it has got very much to do with material or man-made considerations.”126 She concludes, “It is not Islam which is averse to women rulers, I think—it is men.”127
An example of the effect of male interpretation and social norms appears in the development of the concept of “the veil.” The required covering of a woman’s face and body when she ventures out in public is seen by many as a symbol of the Islamic subordination of women.128 [*PG154]However, this practice does not seem to have been mandated in the Qur’an.129 The Qur’an does state that, if a man is to ask anything of the wives of the Prophet, “ask it of them from behind a curtain.”130 Muslim feminist Fatima Mernissi describes the origin of this requirement as an event in which the Prophet, who was eager to be with his newly married wife, yet unwilling to be impolite to wedding guests who had lingered too long, eventually let fall a curtain between himself and the last-remaining of his Companions.131 She then goes on, however, to describe how recent books by Muslim fundamentalists emphasize the importance of women wearing the veil.132 As Mernissi notes, the “relatively minor incident” in the Prophet’s life, which originally was prompted by a need to separate public from private space, “was to turn into a segregation of the sexes.”133
In addition to a history of male interpretation and legislation, the resurgence of Muslim fundamentalism in recent decades has had a profound impact on the status of women in affected societies.134 In general, countries in which fundamentalist rule has taken hold have adopted laws that severely restrict the rights of women to work outside the home,135 to appear unveiled in public, and to protect their rights in the context of marriage and divorce.136 Thus, the rights of women [*PG155]in these male-dominated cultures have become virtually non-existent. Yet, ironically, even these fundamentalist regimes illustrate a grudging recognition of women’s innate power, as their motivating theory seems to be “that women harbor the seeds of destruction of all society and that to avoid this they and their sexuality must be carefully controlled.”137
III. Marriage as the Context for Succession Rights
Marriage is considered a cornerstone of both Judaism and Islam.138 The succession rights of women under Jewish and Islamic law cannot be understood fully unless they are examined in the larger context of the property rights of women within a marriage. Marriage as an institution in pre-Islamic Arabia bore many similarities to marriage in early Biblical times. In both cultures, marriage was a business transaction between the family of the groom and the family of the bride.139 The bride was a productive piece of property who was bought by the groom from her family.140
In both of these cultures, polygyny was permitted.141 In the Jewish tradition, the number of wives a man could have was limited only by his ability to fulfill his marital and sexual duties to each of them.142 The only man for whom the number of wives was limited was the king, and he was limited to 18.143 When asked how many wives a man should have, the rabbis speculated that the number four was realistic in that the husband could serve (or service) each one for one week in the month.144 It was not until somewhere between 960 and 1028 that a definitive Jewish order against polygyny was entered.145
[*PG156] As noted above, the Prophet did not object to polygyny but limited the number of wives that a man could have to as many as the man could care for, up to four.146 The Prophet himself was married to several women through the course of his life.147 Some commentators note that, at the time the Prophet recited the Qur’an, it would have been an unrealistic burden on women to abolish polygyny because tribal warfare had depleted the number of men in the communities and a woman needed the support of a marriage for her own financial well-being.148
In pre-Islamic Arabia, as well as in both religions, the husband could divorce the wife without the wife’s consent. Later Jewish law required the consent of the wife, although the husband technically is the only one who can deliver the get.149 Islamic law allows a man to divorce his wife unilaterally but gives the wife only a limited right to seek a divorce, either upon her husband’s consent or through the judicial system, unless the right to seek divorce on other grounds was reserved by the wife in the marriage contract.150
[*PG157]A. Marriage in Jewish Law
Marriage as an institution is similar under current Jewish and Islamic law in that it is in both cases based on a marriage contract between the spouses.151 In Jewish law, the contract is called the ketubah.152 This contract evolved from the earlier contract under which the groom would pay the marriage price, the mohr, to purchase the bride.153 The ketubah developed into a contract between the husband and wife that outlined both the husband’s and the wife’s obligations.154 The ketubah amount was no longer payable to the bride’s family but to the bride herself.155 One important purpose of the ketubah is to provide for the wife in the event of divorce or her husband’s death.156 Thus, the ketubah speaks of an amount of property that is available to the wife in the event of either of these occurrences.157 The ketubah amount is minimal, but the husband is free to add to that amount.158 The ketubah amount is a lien on the husband’s property.159 At the husband’s death or upon divorce, the wife is also entitled to a return of this amount and of her dowry.160 This property is sometimes referred to as “iron sheep” or “iron flock” assets.161 The assets are merged into the husband’s estate during the course of the marriage and, as with assets such as sheep, he is free to enjoy the fruits of the property during that time. However, the property resembles iron in that, at death or divorce, the value of the property when the marriage began must be returned to the wife (even if the property itself has gone down in value).162
[*PG158] The husband has the duty to maintain the wife during the marriage.163 This duty exists even if the husband is in financial difficulty and the wife has the independent means to support herself.164
B. Marriage in Islamic Law
The Islamic marriage contract calls similarly for a payment (the mehr or mahr) to be made to the bride by the groom. The institution of this payment was seen as an elevation of the woman from her previous status as an “object of sale”165 to that of “a contracting party in her own right.”166 The mehr is not a purchase price paid for the wife to the wife’s family; rather, like the ketubah amount, it is a free gift given into the sole possession of the woman upon the making of the marriage contract.167 The mehr may be specified168 or unspecified169 and a specified mehr may be paid in two parts—prompt and deferred.170 The prompt mehr is to be paid immediately upon the marriage.171 The deferred mehr is an unsecured debt from the husband to the wife.172 The wife is free to demand the deferred mehr at any time during the marriage and, if the husband does not pay it, she can “refuse herself to [*PG159]him.”173 The deferred mehr is typically not paid until the death of the husband or divorce.174 If due at death, the mehr “must be paid before any other estate distribution takes place.”175
In addition to paying the mehr, the Muslim husband is required to provide support for his wife during the marriage in the form of food, shelter, clothing, and medical care.176 However, this support is based on the wife’s willingness to submit to her husband and his refusal to provide maintenance may not be sufficient grounds for her to sue for divorce.177 The wife’s male relatives also are responsible for supporting her.178
IV. Inheritance Under Jewish and Islamic Law
Despite the similarity of their approaches to marriage and divorce, the Jewish and Islamic legal systems differ dramatically in their approach to women’s rights to inheritance and succession. In general, the Islamic law offers an intricately specified system of inheritance rights in contrast to the vague outlines that comprise Jewish inheritance law. In particular, the two laws differ in that Islamic law provides specific shares of property for women in their spouses’ and relatives’ estates, while Jewish law allows women to inherit only in very limited circumstances. In any event, in both legal systems, women’s inheritance rights are generally not equal to those of men.
A. Jewish Inheritance Law
As noted, the Biblical inheritance laws are vague, derived more from Biblical references and illustrations than from explicit direc[*PG160]tions. The Biblical passages focus often on the necessity of retaining the stability of the tribes of Israel179 by maintaining property within the tribe via the patrilineal line.180
The text of Numbers 27:8–11, which is cited as the seminal Biblical source of the laws of succession, provides as follows:
If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter. And if he have no daughter, then ye shall give his inheritance unto his brethren. And if he have no brethren, then ye shall give his inheritance unto his father’s brethren. And if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family and he shall possess it.181
This passage contains a number of clear rules. First, at the father’s death, the sons, if any, received his estate.182 If there were no sons, the property passed to his daughters. If there were no daughters, the property passed to the decedent’s brothers and, if none, to his uncles. The passage seems to exclude female heirs (other than daughters), the mother’s family, and even the male ancestors of the decedent. [*PG161]The passage also does not explicitly include the issue of the decedent’s children or the issue of the decedent’s brethren.
This Biblical passage is the subject of the eighth and ninth chapters of Baba Bathra, the tractate of the Mishnah that deals with the ownership of property. The Baba Bathra interprets the passage so as to include issue and to fill in certain other gaps in the order of succession. It provides in part as follows:
the son precedes the daughter, and all the son’s offspring precede the daughter; the daughter precedes the brothers and the daughter’s offspring precede the brothers; brothers precede the father’s brothers and the brothers’ offspring precede the father’s brothers. This is the general rule: whosoever has precedence in inheritance, his offspring have also precedence. The father has precedence over all his offspring.183
Thus, the descendants of the decedent’s sons, daughters, brothers, and uncles hold a place in the order of inheritance,184 as does the decedent’s father.185
Even the elucidation in the Mishnah did not satisfactorily answer all questions about the order of inheritance. One disputed issue was that of who should inherit if the decedent was survived by a daughter and the daughter of a deceased son. The Talmud includes discussions of this issue and states definitively that, contrary to the teachings of the Sadducees,186 the son’s daughter would inherit and the decedent’s daughter would take nothing.187
[*PG162] Another question on which modern scholars still seem to disagree is whether the priority of males over females continues throughout the entire order of succession. For example, Rabbi Shmuel Shilo188 describes the order of succession as “a parentelic system, conferring the right of inheritance on all kin of the deceased in the agnate (paternal) line of descendancy and ascendancy.”189 Thus, descendants would inherit first. If there were no descendants, the father and his descendants (presumably both male and female descendants) would inherit next. In the absence of a surviving father, siblings, or descendants of siblings, the grandfather and his descendants would inherit, and so on.190 Rabbi Dayan Grunfeld,191 on the other hand, offers a more explicit set of rules, which clearly favor males over females throughout. He describes “the order of succession in the Jewish Law of Inheritance, based on the interpretation of the Oral Law,”192 as follows: “1) the sons 2) their descendants 3) the daughters 4) their descendants 5) the father 6) the brothers 7) their descendants 8) the sisters 9) their descendants 10) the grandfather 11) the brothers of the father 12) their descendants 13) the sisters of the father 14) their descendants, etc., etc.”193 Rabbi Grunfeld’s interpretation gives the father a place of priority, which means that the father takes to the exclusion of the decedent’s brothers. Also, Rabbi Grunfeld retains the priority of males over females (i.e., brothers over sisters) throughout the parentelic system. Thus, the disputation that has been so instrumental in the development of Jewish law continues into modern times.
As will be illustrated more fully below, the Jewish laws of inheritance favor men over women in three ways. First, a decedent’s daughter is precluded from taking any portion of her father’s estate if he is survived by sons or descendants of sons.194 Second, the mother and [*PG163]the mother’s family are not heirs of a decedent.195 Third, a husband inherits from his wife, but a wife does not inherit from her husband.196
In modern times, many Jews have mitigated this discriminatory effect through the use of testamentary bequests and devises.197 Yet this process, too, remains subject to scholarly dissension. References to wills are basically non-existent in the Bible.198 The Baba Bathra prohibits a man from making a testamentary disposition of his property that abrogates the required order of succession.199 However, the same tractate allows a man to give away his property during his life.200 These inter vivos gifts can take the form of an irrevocable gift of property in which the donor may retain the right to a usufruct during life,201 a deathbed gift,202 or a gift made in contemplation of death.203 The gifting of property to one who is not an heir is not expressly prohibited. However, the more orthodox view is that a pious man should not do so.204
B. Islamic Inheritance Law
Unlike the vague Biblical law, the Qur’anic laws of inheritance are extraordinarily specific. An Islamic maxim is “Learn the laws of inheritance, and teach them to the people; for they are one half of useful knowledge.”205
[*PG164] The Qur’an contains an explicit system for the distribution of a decedent’s estate206 among family members.207 The Qur’an specifies certain fractional shares of the estate for named heirs of the decedent, who include both male and female relatives.208 The Shi’a school declares that these specified takers are to be the only takers of the decedent’s intestate estate (that is, the entire estate is to be shared by these named heirs).209 The majority Sunni view, however, is that this new framework is to be superimposed upon the framework that already existed in pre-Islamic Arabia.210 The existing framework was [*PG165]based on a patrilineal system that excluded females.211 Under the Sunni approach, any amounts that are not distributed to the specified takers according to the Qur’anic formulae will pass to the male agnatic212 relatives as residuary takers.213 The named takers and the male agnates take under the rule that “one nearer in degree to the [decedent] excludes one more remote in degree.”214 If there are no surviving blood relatives among the named takers or the decedent’s male agnatic relatives, all other blood relatives (male and female), known as “distant kindred,” are allowed to take.215 In this case, because a husband or wife is not considered a blood relative, the husband or wife, if surviving, will take his or her prescribed share and the distant kindred will take the rest.216
In the Sunni school, the named takers217 are: the decedent’s husband; wife; siblings of the decedent who share the same mother as the decedent;218 the decedent’s mother; father; daughter; sisters who have the same parents as the decedent;219 sisters who share the same fa[*PG166]ther;220 agnatic grandfather;221 grandmother;222 and agnatic granddaughter223 of the decedent.224 Each of these takers has a prescribed share of the estate.225 The prescribed share of each of these takers is in turn modified (and may, for some takers, even be reduced to zero)226 if the decedent is also survived by an agnatic descendant or, in some cases, an agnatic ancestor.227 For example, a surviving husband’s Qur’anic share is one-half of the estate if there is no agnatic descendant and one-fourth of the estate if there is an agnatic descendant.228 Also, the share of a brother or sister of the decedent is zero if the decedent is survived by an agnatic descendant or a male agnatic ancestor.229
[*PG167] Each of the named takers takes his or her prescribed fractional interest as an undivided interest in each asset of the estate.230 Some of these named takers—the father, daughter, agnatic grandfather, agnatic granddaughter, and sisters—may be converted into residuary takers by the survival of another relative. For example, a daughter is entitled to one-half of the estate if there is no son, but she shares in the residue as a residuary taker if the decedent is survived by a son.231 When the rules pertaining to named takers and residuary heirs are combined, five heirs of the decedent emerge as heirs “who are never excluded from succession by any other relative of the [decedent].”232 These are the decedent’s father, mother, son, daughter, and spouse.233
The Shi’a takers appear in three categories:
Category 1: Parents and lineal descendants;
Category 2: Ascendants and siblings and siblings’ issue;
Category 3: Uncles and aunts and their descendants.234
The takers share the estate with the surviving spouse.235 Some of these named takers—specifically, the father, mother, daughter, daughter’s descendants, sisters and their descendants, and brothers by the same mother and their descendants—are given shares in prescribed amounts.236 The rest of the takers are residuary takers.237 If there are survivors in the first category, they share the estate to the exclusion of those in categories 2 and 3, and survivors in the second category preempt the takers named in category 3.238 Within each category, the closer relatives exclude the more distant ones.239 Within the catego[*PG168]ries, there is little or no distinction between males and females.240 Also, the survival of an agnatic descendant or ancestor has no affect on the prescribed share of a named taker. Thus, the Shi’a system may result in a greater amount being inherited by female relatives. For example, if a decedent is survived by a grandfather (father’s father), his wife and his daughter, the Sunni system would divide the estate as follows: three-eighths to the grandfather, one-eighth to the wife, and one-half to the daughter. Under the Shi’a system, the wife and daughter, as the closer relatives, would share the estate equally to the exclusion of the grandfather.241
Under Islamic law, an individual is allowed to bequeath up to one-third of his estate.242 The Sunni system prohibits this one-third from being bequeathed to any family member who is named in the Qur’anic framework.243 The Shi’i, on the other hand, allow this amount to be distributed to family members, thus potentially increasing the share that will pass to female relatives.244
In certain circumstances, under the Sunni system, a female is restricted to one-half of what her male counterpart will take.245 A son’s [*PG169]share will be twice that of a daughter.246 A sister’s share will be half that of her brother.247 One theory provides that this is not gender discrimination per se, but rather a tangible recognition of the more substantial male responsibility of supporting his own wife and children.248
The question in Islamic inheritance law of whether a male always inherits a share that is twice that of a female of equal class presents an interesting case in which male interpreters of the Qur’an may have been willing to stretch even the words of the Qur’an itself to favor their gender. The Qur’anic verse states that “[t]he male shall have the equal of the portion of two females . . . .”249 Yet a literal reading of the separate verse that specifies heirs’ fractional shares is not consistent in some cases with the double share requirement. For example, if a decedent is survived by his wife and parents, the wife should receive one-fourth of his estate, the mother one-third and the father the remaining five-twelfths.250 Worrying that the father does not receive double of what the mother receives, the legal scholars determined that the mother was not to receive one-third of the estate but rather one-third of what remains in the estate after the wife receives her share.251 Under this interpretation, then, the wife would take one-fourth, the mother would take one-fourth also (one-third of the remaining three-fourths), and the father would take the remaining one-half of the estate, thus securing his double portion.252
[*PG170] The provision for double shares for males is often pointed to as a source for the proposition that Islamic law generally favors men over women. It should be noted, however, that the Qur’anic system may at times result in situations in which female family members (although not of the same rank) may end up with equal or greater shares of decedent’s estate. For example, if a wife dies survived by her husband, her daughter and her (the wife’s) brother, the estate will be distributed as follows: one-fourth to the husband, one-half to the daughter, one-fourth to her brother. Thus, the spouse and male relative of the wife each receive half of the amount allocated to the daughter.253
C. Specific Rules of Inheritance
It is difficult to make the blanket statement that women are better protected under one of these religious succession systems rather than the other. Both systems clearly favor men over women. However, as will be seen in the descriptions that follow, the Islamic approach of guaranteeing intestate shares to certain named female heirs results often in these women having greater rights than they would have under Jewish law.
1. Husband and Wife
a. Husband’s Right to Wife’s Estate
Jewish Law: Under Jewish law, the traditional rule was that if the wife died before her husband died, the husband was entitled to receive the wife’s entire estate.254 This included any amount that she had brought into the estate as dowry.255 However, a father was obliged to ensure that his sons by this deceased wife would inherit her ketubah,256 along with their other rightful share of his estate.257 The unfairness of this broad rule of total inheritance by the husband, particularly in cases where the spouses had been married only a brief time, was mitigated over time by several communities.258 Takkanot259 [*PG171]were enacted that called for the return of the entire dowry to the wife’s family if the wife died childless within one year of marriage and one-half of the dowry if the wife died childless within two years.260
Islamic Law: Unlike Jewish law, Islamic law provides both the husband and the wife with a definite portion of each other’s estates and then divides the rest of the estate among other relatives of the deceased spouse. The husband’s share in the wife’s estate is expressly delineated in the Qur’an.261 Under the Sunni system,262 if the wife is survived by one or more agnatic lineal descendants, the husband is entitled to one-fourth of her estate.263 If the wife is not survived by any children or agnatic lineal descendants, the husband takes one-half of her estate.264 The remaining estate is then divided, under the Sunni approach, among her agnatic lineal descendants or, if none, the wife’s other relatives.265 (Her husband is not deemed to be her “relative.”)266 It is important to note, however, that the husband’s share of the estate is specifically limited by the Qur’an to his prescribed portion after payment of any legacies or debts.267
b. Wife’s Right to Husband’s Estate
Jewish Law: The inheritance rights of widows are not described in the Bible.268 Under the Jewish law of marriage, the wife is entitled to receive her ketubah269 amount from the husband’s estate.270 (Some [*PG172]later takkanot271 limited her right to one-half of the husband’s estate, even if more was due her.)272 Until the ketubah amount is paid to her, the wife is entitled to maintenance and support from her husband’s heirs.273 Eventually, the law allowed the husband’s heirs to pay out the wife’s ketubah amount and thus terminate their obligation to support her.274
Islamic Law: Under Islamic law, the widow has a right to her deferred mehr275 and also to her Qur’anic share of her husband’s estate. The prescribed amount is basically one-half of the amount to which the husband is entitled if the wife were to die first.276 If the husband left agnatic lineal descendants, the widow’s share is one-eighth of his estate.277 Her share is one-fourth of the estate in the absence of lineal descendants.278 If there is more than one widow, however, the widows must share that amount equally among themselves.279 The wife, like the husband, will never take more than the prescribed share.280 Also, as with husbands, the Qur’an specifically states that the surviving wife’s share is a share only of the net estate.281 Thus, while the Jewish wife’s support right is not a property right per se, she may fare better than her Islamic counterpart if the husband’s estate is subject to extensive debts.
2. Daughters
Jewish Law: Under Jewish law, the daughter of a deceased male is entitled to support from her father’s estate until the earlier of her marriage or her attainment of the age of majority.282 This is a lien [*PG173]against her father’s estate, subject only to the priority of the widow’s ketubah.283 While this rule does not necessarily result in the daughter receiving a share equal to that of her brothers, in the case of an insolvent estate, it may result in an unmarried minor daughter receiving something while her brothers receive nothing.284 The daughter’s right to maintenance is based in the ketubah of her parents and thus her father cannot make any deathbed instruction that she not receive it.285
The sons who inherit their father’s estate are also obligated to give their sisters a dowry from the estate.286 However, the father is allowed to give a deathbed or testamentary instruction that would deprive the daughter of her dowry.287 The ketubah and the father’s obligations of support for the widow and the daughters take precedence over the daughter’s dowry.288
Direct Biblical references to inheritance by daughters indicate that a daughter may inherit from her father’s estate, but only if the father is not survived by any sons.289 As noted above, the Mishnah explained that the Biblical reference to “sons” included not just sons, but the children of sons. Thus, if a decedent is survived by a daughter and by a son’s daughter, the son’s daughter will take the entire estate to the exclusion of the daughter.290 In Chapter 27 of the Book of Numbers, the daughters of Zelophehad asked to share in their father’s estate since he had died without sons.291 The Lord told Moses [*PG174]to communicate the following to the children of Israel: “If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter.”292 The daughter’s inheritance, however, did not come without a substantial restriction on her freedom to marry. In a later chapter in the Book of Numbers, the heads of one of the tribes complained that Zelophehad’s daughters might marry outside the tribe and “so will their inheritance be taken away from the inheritance of the tribe of our fathers.”293 Moses allayed their concerns when he conveyed the Lord’s decree that “every daughter, that possesseth an inheritance in any tribe of the children of Israel, shall be wife unto one of the family of the tribe of her father, that the children of Israel may possess every man the inheritance of his fathers.”294 As noted above, later sages determined that this restriction “was applicable only to the particular generation to whom the enjoinder was directed.”295
First-born daughters who inherit their father’s estate do not have the same entitlement to a double share as do first-born sons.296 Also, daughters who inherit from the father’s estate are not entitled to maintenance from their father’s estate.297
Fathers in Ashkenazi298 communities developed a method by which they could circumvent the inheritance rules and allot a portion of their estates to their daughters. This was accomplished through a deed given by the father to the daughter when she married in which the father agreed to pay her a large sum of money, to be due the hour before he died. The father would also provide that his estate could [*PG175]satisfy this debt by providing the daughter instead with one-half of a son’s share in the estate.299
Inheritance by children of their mother’s estate is not directly addressed in the Torah, thus leaving the pertinent rules to be derived by the scholars. The rules that were derived resulted from a tortured reading of Numbers 36:8. This verse provides that “[a]ny daughter who inherits a legacy of the tribes of the Children of Israel” shall marry someone in her father’s tribe. The sages noted that the use of “tribes” in the plural form indicated that a daughter could inherit from her mother as well as from her father.300 From this, the sages extrapolated, first, that the son (as well as the daughter) is also an heir of the mother, and, second, that the son takes precedence over the daughter, just as he does in inheriting his father’s estate.301 Dissenting views were raised, which advocated equal inheritance by the sons and daughters of their mother’s estate.302 However, these dissents were quickly silenced, with accompanying threats of excommunication for those who advocated them.303 A mishnah clearly states that daughters “receive maintenance from the father’s property but not from the mother’s property.”304
Islamic Law: Both the Sunni and the Shi’a systems list the daughter as a named taker with a prescribed share of the estate.305 Thus, a daughter will never be excluded from sharing in the parent’s estate. The amount of the Qur’anic share of a daughter depends upon whether the deceased parent is survived by sons or other daughters.306 If the decedent is survived by sons as well as one or more daughters, the daughters and sons share the residue of the estate but each daughter takes one-half of a son’s share.307 If there is no son and the decedent is survived by only one daughter, she takes one-half of the [*PG176]estate.308 If there are no sons but more than one daughter, the surviving daughters share two-thirds of the estate equally among themselves.309
The Islamic law treats daughters better than the Jewish law under some circumstances and worse under others. Under the Jewish system, a daughter is completely excluded from sharing in her deceased parent’s estate if the parent is also survived by a son or the descendant of a son. On the other hand, if there is no surviving son or son’s descendant, the daughter takes the entire estate. Under the Islamic system, the daughter is always guaranteed a portion of her parent’s estate. The survival of a son will not preempt her, but it will reduce her prescribed share. The survival of a son’s descendant will not even reduce the daughter’s share. These comparisons are illustrated in the following table.
Table 1
Decedent survived by daughter (D) and by the relative(s) listed |
| 1. Son (S) | S takes all | D–1/3; S–2/3 |
| 2. Son’s Daughter (SD) | SD takes all | D–1/2; SD–1/6 (rest to male relatives) |
| 3. Son, Mother, and Father | S takes all | D–8/36; S–16/36; M–1/6; F–1/6 |
| 4. No Son, Son’s Descendants’ Parents | D takes all | D–1/2 (rest to male relatives) |
| 5. Mother, Father | D takes all | D–1/2; F–1/3; M–1/6 |
| 6. Wife, Father | D takes all | D–1/2; W–1/8; F–9/24 |
3. Mothers
Jewish Law: Under Jewish law, neither the mother nor the mother’s family are heirs of her deceased child.310 Thus, if a decedent dies survived by both parents and not by issue, the father inherits the decedent’s entire estate. The only circumstance under which a mother may take from a deceased child’s estate would be if the deceased child were a daughter who had died childless after less than one year of marriage and the community takkanah provided that the daughter’s dowry was to be returned to her family.311 This circumstance presupposes also that the daughter’s father is no longer alive.
[*PG177] Islamic Law: Mothers are among those takers who are specified in the Qur’an.312 If the decedent dies and is not survived by any children or son’s children, and is survived by only one sibling, if any, the decedent’s mother’s share is one-third of the estate.313 If the decedent in this case is survived by two or more siblings, the mother’s share is one-sixth.314 If the decedent is survived by one or more children or son’s children, the mother also takes one-sixth of the estate.315
The Qur’anic share of the decedent’s father is one-sixth of the estate.316 However, the father is also a residuary taker, so he ends up taking a greater portion of the estate than the decedent’s mother.317 For example, if a decedent is survived by both mother and father and there are no surviving children, agnatic descendants, or siblings of the decedent, the mother takes her one-third and the father takes his one-sixth share plus the rest of the estate, for a total share of two-thirds.318 If a decedent is survived by a spouse as well as the mother and father, the mother’s share is reduced in that the mother’s one-third share is one-third of the remainder after the spouse has taken his or her share.319 This results in the mother receiving one-fourth of the estate if the decedent is survived by a wife and parents and one-sixth of the estate if the decedent is survived by a husband and parents.320 In these cases, the father receives one-half and one-third of the estate respectively. The reduction of the mother’s share in these circumstances ensures that she will always take less than the father.321
[*PG178]4. Other Female Relatives
Jewish Law: Jewish law does not provide specific succession rights for most female relatives of the decedent. As noted above, the seminal verse in the Book of Numbers establishes a parentelic system of inheritance. This system does not expressly name female relatives but it may result in the distribution of portions of the estate to them. Under this system, sons and sons’ issue are the primary heirs. The issue of the son may be male or female. Even if female, the fact that a child is a child of the son may cause that child to preempt the rights of a daughter of the decedent.322 The father and the father’s issue are next in line after descendants.323 If there are no surviving issue, father, siblings or siblings’ issue, the next group includes the grandfather and the grandfather’s issue. There seems to be no distinction between male or female “issue” in these groups. Thus, if the decedent is survived by a nephew and a niece, both the children of the decedent’s only (predeceased) brother, the nephew and niece would share the estate equally. On the other hand, there may remain an inequality between takers of the same rank, such as the decedent’s siblings or the decedent’s aunts and uncles. As noted above, the more conservative interpretation of the parentelic system would still place brothers and their issue ahead of sisters and their issue, and uncles and their issue ahead of aunts and their issue.324 Thus, if the decedent were survived by a sister and by two nieces, one of which was the daughter of a predeceased brother and the other the daughter of a predeceased sister, the daughter of the brother would take the entire estate to the exclusion of the surviving sister and the predeceased sister’s daughter. Also, if a decedent were survived only by the decedent’s father’s brother (an uncle) and the decedent’s father’s sister (an aunt), the uncle would take the estate to the exclusion of the aunt.
It should also be recalled that the decedent’s mother’s family has no place in the scheme of succession. Thus, if the decedent were survived by the decedent’s father’s sister and the decedent’s mother’s sister, the father’s sister would take the entire estate. The Jewish succession system does not include any reference to grandmothers.
[*PG179] Islamic Law: In Islamic law, express provision is made for sisters and grandmothers of the decedent and for the decedent’s agnatic granddaughters (that is, the female issue of a son of the decedent).
A grandmother is allotted a one-sixth share as a substitute for the decedent’s mother.325 A “grandmother” may in fact be a great-grandmother or an even higher ancestor.326 However, a grandmother who is closer in relationship to the decedent will exclude a great-grandmother or other more remote grandmother from taking.327 If there is more than one grandmother of the same degree of relationship, they share the allotted amount.328 In the Sunni system, on the maternal side, the mother of the mother of the decedent is the “grandmother.” Among the various schools of thought in the Sunni system,329 there is a divergence of opinion as to whether, on the decedent’s paternal side, the “grandmother” is determined to be only those in the line stemming from the father (that is, the father’s mother, the father’s mother’s mother, etc.) or may also include those in the line stemming from the father’s father.330
Sisters of the decedent are allocated fractional shares that depend upon whether their relationship to the decedent is due to them having the same mother (“uterine”), the same father (“consanguine”), or both parents in common (“germane”).331 A uterine sib[*PG180]ling, either brother or sister, takes a one-sixth share (or they share one-third, if more than one), if the decedent is not survived by a child, agnatic grandchild, or male agnatic ancestor.332 Germane and consanguine sisters of the decedent are entitled to one-half of the estate if the decedent is not survived by a child, agnatic grandchild, father, male agnatic ancestor, or full brother.333 Germane sisters are given precedence over consanguine sisters.334 Also, the survival of a consanguine brother will reduce a consanguine sister’s share.335
The term “agnatic granddaughter” includes not just the daughters of the decedent’s sons, but rather any female issue of the decedent’s son (great-granddaughters, etc.).336 An agnatic granddaughter may take a share of the decedent’s estate either as a named taker or as a residuary taker.337 As a named taker, she will take one-half of the estate (or, if more than one granddaughter, two-thirds) if the decedent is not survived by any children or closer agnatic issue or by an agnatic grandson of the same generation.338 The agnatic granddaughter is entitled to one-sixth of the estate if the decedent is survived by a daughter, but no son or grandson.339 The agnatic granddaughter will take as a residuary taker in two circumstances. First, she will take as a residuary taker if the decedent is survived by a son’s male issue who is [*PG181]of the same generation as the granddaughter. Second, she will take as a residuary taker if the decedent is survived by a son’s male issue who is one or more generations below the granddaughter.340
V. Jewish and Islamic Women’s Rights of Inheritance in Modern Times
As the foregoing text illustrates, strict adherence to religious law in many cases grants Islamic women greater inheritance rights than Jewish women (and, in both religions, grants lesser inheritance rights to women than to men). Modern times and customs, however, have seen a reversal of the advantage that Islamic women had over Jewish women.
In Israel, modern laws and custom have changed the all-encompassing role that religion plays in the inheritance rights of women. In Israel, the secular Succession Law of 1965341 governs the distribution of property at death.342 This system protects surviving spouses (whether male or female) in four ways. First, the Succession Law includes the surviving spouse as a taker of a portion of the decedent’s estate.343 Second, the surviving spouse is entitled to ownership of a portion of the deceased spouse’s property based on the assumption that the spouses acquired property as a community rather than as individuals.344 Third, the surviving spouse may be entitled to continue residing in or even to inherit absolutely (regardless of a contrary testamentary disposition) the couple’s home.345 Fourth, the surviving spouse remains entitled to any property that was due to pass to him or her under the marriage contract.346 In addition, the Succession Law of Israel makes no distinction between male and female heirs.347
[*PG182] Even for orthodox Jews who remain faithful to the restrictions of the Book of Numbers rather than to secular law, the unfairness to women that is inherent in these Biblical restrictions has been recognized in modern times, and mechanisms for mitigating this inequality have been devised. Those orthodox Jews (including orthodox lawyers) who have chosen not to write wills that override the laws of the Torah have sought guidance from Biblical scholars as to how to protect the interests of their wives and daughters.348 As noted above, a strict adherence to the Biblical text would give priority to sons over daughters and would preclude a surviving widow from inheriting from her deceased spouse. Furthermore, the orthodox Jew is cautioned that any attempt to override these proscriptions by will is invalid.349 Yet Jewish law does include the mechanism of an inter vivos deed of gift that, if properly drafted and witnessed, may help to equalize inheritance among (for example) a father’s sons and daughters. This mechanism is recommended and a draft deed of gift provided350 by the prominent rabbi and scholar Dayan I. Grunfeld, who offers this mechanism as “a way out of the predicament for those who want to provide for their wives and daughters without infringing the Jewish Law of Inheritance.”351
On the other hand, in modern Islamic countries, the reality of women’s lives often does not reflect their rights to own and inherit property under religious law. Recent years have seen an upsurge in political domination by groups that are identified as Islamic extremists.352 In the name of faithfulness to the religion of the Prophet,353 these fundamentalist groups transform government and practice in a way that subordinates women and often results in rendering them vulnerable and powerless in these societies.354
[*PG183] Perhaps the primary source of women’s economic vulnerability in these countries is the dependency of women upon men for their support and maintenance. Islamic law decrees that a woman’s male relatives remain financially responsible for her even when she is married.355 In countries that are dominated by Islamic fundamentalists, women are precluded from establishing any financial independence because they are forbidden to work and are often excluded from public life altogether.356 Thus, women are easily coerced by their male relatives, such as fathers and brothers, into turning over to them any inherited wealth in return for a guarantee of their continued support. This practice has been documented in recent years in Egypt and on the West Bank and has been described as a phenomenon that occurs “frequently” among Muslim women in Israel.357 The studies also show that a woman may be discouraged from retaining wealth inherited from her spouse by the threat of her remaining family members to marry her to another relative in order to keep the inheritance within the family.358 The widow’s dower rights have proved also to be compromised in these countries in that fathers, rather than wives, are repeatedly reported as keeping part of their daughters’ dowries and mothers are often disclaiming these rights in order to strengthen their relationship with the sons upon whom they became dependent.359
Conclusion
The laws of Judaism and Islam both established inheritance rights for women long before these rights were established in most Western countries. These rights took the form of support rights (particularly for widows and daughters of the decedent) and of specified property rights. For married women, the inheritance rights were an extension of the property rights they gained as a result of the marriage.
The granting of these rights to women by Jewish and Islamic law presaged the rights of modern Western women to inherit property [*PG184]and, in some cases, demand support from a decedent’s estate. In an ironic twist of fate, however, the Western cultures that historically denied women their rights have come close in modern times to achieving sex equality in this crucial area of the law while, at the same time, a resurgence of fundamentalism in both of the religions, particularly in Islam, threatens to visit new and even greater inequities on women. The fundamentalists emphasize (and, some argue, exaggerate) those provisions of each religion that subjugate women. Lost in this modern political process is the historic role that these religions played in supporting and protecting women’s property and inheritance rights. Thus, the challenge for women in these religions today is to ensure that this historic role is not forgotten and that it is accurately played out in the continuing evolution of debate that characterizes the formation of law in both Judaism and Islam.
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