* Professor of Law, Georgia State University College of Law; J.D. (1981) Emory School of Law; B.A. (1974), Newcomb College of Tulane University.
1 Alina Semo Kofsky, A Comparative Analysis of Women’s Property Rights in Jewish Law and Anglo-American Law, 6 J. Law & Rel. 317, 342 (1988). Marriage deprived a woman of her legal identity and brought her property under the control of her husband. See generally Katherine T. Bartlett & Angela P. Harris, Gender and Law: Theory, Doctrine, & Commentary 9–12 (2d ed. 1988). As early as the 15th century, a widow was entitled to “dower” when the husband died. However, dower consisted only of a life estate in one-third of the husband’s property. Kofsky, supra, at 339. The first Married Women’s Property Acts were not enacted in the United States until the early 1800s. See id. at 342. For a summary of the enactment of these state laws and how they affected married women’s legal status, see Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women app. One, 377–82 (1991).
2 The laws of intestate succession, which are sometimes referred to as the “laws of descent and distribution,” are basically used to determine those persons to whom a decedent’s property will be distributed if the decedent dies without a valid will. Jesse Dukeminier & Stanley Johanson, Wills, trusts, and Estates 67–68 (5th ed. 1995); see, e.g., Ga. Code Ann. § 53–2–1(b)(1) (1997) (“When a decedent dies without a will, the following rules shall determine such decedent’s heirs . . . .”).
3 See Kofsky, supra note 1, at 338–39. Perhaps the best-known example of the exclusion of women from inheritance was the rule of primogeniture, which caused a decedent’s real property to pass to his first-born son. This rule became prominent in England after the Norman Conquest. Thomas E. Atkinson, Handbook of the Law of Wills 13 (2d ed. 1953).
4 This guaranteed amount is described in some state laws as a fraction of the estate. See, e.g., Ga. Code Ann. § 53–2–1(b)(1) (1997) (one-third of the estate); Ky. Rev. Stat. Ann. § 392.020 (1995) (one-half of the estate); S.C. Code Ann. § 62–2–102 (1987) (one-half of the estate). Other states guarantee the spouse a minimum value of the estate plus a fraction of the remaining balance. See, e.g., Ala. Code § 43–8–41 (1991); Fla. Stat. Ann. § 732.102 (1995).
5 See Dukeminier & Johanson, supra note 2, at 473–74. “Community property is based on the idea that husband and wife are a marital partnership, that they decide together how to use the time of each so as to maximize their income, and that they should share their earnings equally.” Id. at 476.
6 Id. at 474. However, it is only within the last half of this century that this right has been equalized between husbands and wives. Prior to that time, some of the state community property laws provided that a husband who survived his wife would end up owning all of the community property after her death, while a wife who survived her husband would retain only her one-half interest. See Hoff, supra note 1, at 286–87.
7 Dukeminier & Johanson, supra note 2, at 483–84. “The underlying policy (at least in a long marriage) is that the surviving spouse contributed to the decedent’s acquisition of wealth and deserves to have a portion of it.” Id. at 484. For a description of elective share statutes, which generally reflect the provisions of the Uniform Probate Code, see Mary F. Radford & F. Skip Sugarman, Georgia’s New Probate Code, 13 Ga. St. U. L. Rev. 605, 652–56 (1997).
8 See Dukeminier & Johanson, supra note 2, at 480–81. For a description of the forms these support statutes take, see Radford & Sugarman, supra note 7, at 656–58.
9 “A comparison of the property rights afforded Jewish women in Halachah (Jewish law) and Anglo-American women at common law reveals that Jewish women had a greater ability to own and dispose of property free from her husband’s influence, and was able to do so at an earlier time in history than her Anglo-American counterpart.” Kofsky, supra note 1, at 346. See also the description of women’s intestate shares in Islamic law, infra at text accompanying notes 204–05.
10 Women’s rights under this law are discussed in Part V, infra.
11 These laws are discussed in Part V, infra.
12 “It is a basic tenet of the Jewish faith that the source of Jewish law . . . is divine revelation . . . .” The Principles of Jewish Law 18 (Menachem Elon ed., 1975) [hereinafter Principles of Jewish Law]. Professor Elon describes the Bible as the “source of authority of the whole of the Jewish legal system.” Id. at 11. “The ultimate source of Islamic law is God alone . . . .” Zainab Chaudhry, The Myth of Misogyny: A Reanalysis of Women’s Inheritance in Islamic Law, 61 Alb. L. Rev. 511, 519 (1997).
13 Unlike Christianity, however, the individuals to whom the law of Judaism and Islam was revealed were not themselves considered divine.
14 See Rabbi Rodney J. Mariner, Introduction, to The Torah 9 (Henry Holt and Company, Inc. 1996). “To speak of the origins of the Torah is, for Orthodox Jews, to speak of the moment on Sinai when Moses received not only the two tablets of stone, but the written Torah dictated to him by the God of the Exodus, and all the oral interpretations that were to be the substance of Rabbinic teaching in subsequent generations.” Id.
15 Islam teaches that the word of God was communicated to the Prophet by the angel Gabriel. See B.R. Verma, Islamic Law—personal: Being Commentaries on Mohammedan Law 8 (M.H. Beg & S.K. Verma revs., 6th ed. 1986).
16 “A material feature of Jewish law is the fact of its continuing evolution.” Principles of Jewish Law, supra note 12, at 24. See also Charles Kurzman, Introduction: Liberal Islam and the Islamic Context, in Liberal Islam: A Sourcebook 5–6 (Charles Kurzman ed., 1998).
17 One source of Jewish law is the “legal systems of Israel’s contemporary and earliest neighbours. . . . [T]here emerges from the cuneiform record [discovered by archeologists in the last decade] evidence of a common legal tradition that stretched across the whole of the ancient Near East. That tradition is reflected especially in a form of jurisprudence that was developed in Mesopotamia as part of a wider intellectual system and transmitted beyond its boundaries through the medium of cuneiform scribal schools.” An Introduction to the History and Sources of Jewish Law 7 (N.S. Hecht et al. ed., 1996). For Islam, around 750 c.e., as trading with Byzantium and Persia increased, “[i]nevitably, Byzantine and Persian legal concepts infiltrated into the Muslim legal philosophy.” David Pearl, A Textbook on Muslim Law 6 (1979).
18 See Mariner, supra note 14, at 9. “Halakah is the Hebrew-Aramaic name assigned to the newly formed Jewish law during [the Tannaitic period, approximately 70 c.e.—3rd century c.e.]. It was both a general term referring to the whole corpus of Jewish Law from that time onwards, and a specific term ascribed to a particular law regarding any specific matter.” An Introduction to the History and Sources of Jewish Law, supra note 17, at 101–02.
19 “Torah” also has a broader meaning: “it describes . . . the entire body of Jewish learning that is continuing and expanding in our present time.” Mariner, supra note 14, at 7.
20 “[The Torah] is also called the Pentateuch, from the Greek meaning ‘five scrolls’ and the Chumash, from the Hebrew meaning a ‘five-fold entity.’” Id. at 7.
21 These books and other books of the Bible will be cited by name with an accompanying reference to the chapter and verse, e.g. “27 Numbers 1–3” refers to verses 1–3 of chapter 27 of the Book of Numbers.
22 See Mariner, supra note 14, at 7. “Scholars have detected four major strands which together form the five books of the Torah, variously labeled as the tenth-century BCE ‘J text’ (from the singular use of Yaweh/Jaweh for the name of God), the eighth-century BCE ‘E text’ (from the use of Elohim for God), the sixth-century ‘D text’ (derived from the book of Deuteronomy, which was found during the reign of King Josiah, and is imbued with the teachings of the Prophets), and the fifth-century BCE ‘P text’ (which contains the major priestly codes incorporated after the Babylonian exile). Each of these texts has been interwoven one with another, sometimes providing parallel and even contradictory information.” Mariner, supra note 14, at 9–10. In addition to the Pentateuch, the books of the Prophets and the Hagiographa are important sources of Jewish law. See Principles of Jewish Law, supra note 12, at 12.
23 Dayan I. Grunfeld, The Jewish Law of Inheritance 3 (1987). Professor Elon distinguishes two components of Jewish “Oral Law”: that given to Moses by God on Mt. Sinai and handed down through the generations and that “created and developed by the halakhic scholars.” Principles of Jewish Law, supra note 12, at 54. The Aboth, a tractate of the fourth order of the Mishnah, describes the transmission of the laws from Moses down through the generations. Aboth 1.1–18, The Mishnah 446–47 (Danby transl. 1985). (See infra text accompanying notes 25–28 for a description of the Mishnah.)
24 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 108.
Midrash is directly based upon the scriptures. It is an activity best described as the interpretation and exposition of the scriptures in that it is founded on two principal presumptions; on the one hand, it is accepted that the biblical text is to be interpreted (by the Sages and Rabbis) in order to resolve legal problems and create new legal material. On the other, it is supposed that any new legal construct arising out of midrash, or any solution to a legal problem, is a mere exposition of a newly discovered aspect of biblical law.
Id. at 108–09.
25 See id. at 116. “Subsequent to his [the Rabbi’s] compilation of the Mishnah, it was no longer possible to determine a law without taking the Mishnah into account, even though it was still possible to argue and disagree, just as argument and difference had been legitimate in the days of the Rabbi himself.” Id. at 117.
The Mishnah may be defined as a deposit of four centuries of Jewish religious and cultural activity in Palestine, beginning at some uncertain date (possibly during the earlier half of the second century B.C.) and ending with the close of the second century A.D. The object of this activity was the preservation, cultivation, and application to life of ‘the Law’ (Torah), in the form in which many generations of like-minded Jewish religious leaders had learnt to understand this Law.
Introduction to The Mishnah, supra note 23, at xiii.
26 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 117–18.
27 Each order of the Mishnah is divided into tractates, each tractate into chapters, and each chapter into numbered paragraphs. Each numbered paragraph is a mishnah. A mishnah may be referenced in two ways. First, the citation may be to the tractate, including the numbers of the chapter and mishnah, as it appears in the Mishnah (e.g., Baba Bathra 8:1). Alternatively, the mishnah cite may refer to the location of the mishnah in a portion of the Talmud (e.g., Baba Bathra 108a). See Nahum Rakover, A Guide to the Sources of Jewish Law 33 (1994). See infra text accompanying notes 29–30 for a description of the Talmud.
28 An Introduction to the History and Sources of Jewish Law, supra note 17, at 117–18.
29 “[T]he Babylonian Talmud is often referred to colloquially as the Gemara.” Id. at 175.
30 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 169.
The great halakhic works, which constitute the basis for all later halakhic literature, were created during the three centuries following the redaction of the Mishnah by R. Judah the Patriarch (220 C.E.). These works are the Jerusalem (Palestinian) Talmud created in the Land of Israel (and completed—insofar as it is complete—in the fifth century C.E.) and the Babylonian Talmud which was edited and redacted in Babylonia, and completed there in the sixth century C.E. Their primary aim was the clarification and interpretation of the Mishnah of R. Judah the Patriarch. The term Talmud means “teaching” or “study”; the two Talmudim were compiled through the process of teaching and study of the earlier halakhic literature, particularly the Mishnah. Whereas the form of the Mishnah is that of an organised collection of concisely-stated rules, the form of the Talmudim is that of a discursive scholarly commentary on the Mishnah.
Id. “[T]he most characteristic feature of the Talmud is the disputation . . . .” Haim H. Cohn, Jewish Law in Ancient and Modern Israel x (1971). “The Talmud (Gemara), which includes deliberations of the sages, halakhic commentaries of the early tannaim and amoraim, decisions, epistles, responsa, and decisory rules, has been accepted in the halakhic world as authentic and binding material constituting the starting point for the deliberation of any halakhic subject whatsoever.” Principles of Jewish Law, supra note 12, at 124. The Babylonian Talmud “became the most extensively studied standard reference work for halakhic scholars, who elucidated it with notes and commentaries; the relatively obscure Jerusalem Talmud, lacking supporting literature, has remained more difficult to master.” An Introduction to the History and Sources of Jewish Law, supra note 17, at 179.
31 References in this article to the Talmud will be references to the Babylonian Talmud. See discussion, supra note 30. The citations will include the name of the tractate, the folio number and the letter “a” or “b,” which indicates a reference to the front or back side of the folio. Rakover, supra note 27, at 44.
32 See id. at 82.
More often than not [Responsa] are . . . not judicial decisions in the proper sense, but rather legal opinions of renowned scholars which were given to local courts or judges before whom a controversy had arisen: instead of deciding novel or complex questions of law on their own responsibility, they would address themselves to the leading spiritual and legal authority of their day or of their country and ask for guidance and instruction. . . . A good many of the Responsa given before the completion of the great codes were incorporated in them . . . .”
Cohn, supra note 30, at xiii. “This body of literature [the Responsa] is the case law of the Jewish legal system, estimated to include a total of approximately 300,000 judgments and decisions.” PRINCIPLES OF JEWISH LAW, supra note 12, at 13.
33 Cohn, supra note 30, at xiii. “In addition to the codes and to the Responsa, there is a third important written source of Jewish law, and that is the Commentaries.” Id.
[W]hile the authority accorded to the various commentators may vary according to their respective individual standing and stature, just as the authority accorded to the various Responsa may so vary—from the point of view of legal theory, all these commentaries, no less than the Responsa, are legitimate and authoritative sources of law.
Id. at xiv.
34 This Commentary “is printed at the back of each volume in all standard editions of the Talmud . . . .” Rakover, supra note 27, at 35.
35 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 111.
36 See id. at 112. Most of the takkanot appeared in 13th and 14th century Spain and were limited primarily to monetary matters. See id. at 284. Professor Elon distinguishes two types of takkanot: those handed down by the Sages and communal enactments. See Menachem Elon et al., Jewish Law (Mishpat Ivri): Cases and Materials 71, 77 (1999). In addition to minhag and takkanot, Professor Elon describes other legal sources of Jewish law: “ma’aseh, representing the legal norms derived from judicial decision or the conduct of a halakhic scholar in a particular concrete case . . . [and] sevarah, reprsenting [sic] the legal norms originating directly from the legal-human logic of the halakhic scholars.” Principles of Jewish Law, supra note 12, at 14.
37 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 112.
38 Cohn, supra note 30, at xxx.
39 The term “Islam,” which appears in the Qur’an, is the term used by Muslims to designate their faith. See Wilfred Cantwell Smith, The Meaning and End of Religion 80–82 (1991). “Islam, by definition in Arabic, means ‘submission to the will of God,’ and a Muslim is one who adopts the faith of Islam.” Nayer Honarvar, Behind the Veil: Women’s Rights in Islamic Societies, 6 J.L. & Rel. 355, 360 (1988).
40 See Chaudhry, supra note 12, at 517.
41 See id. at 517–19. These four sources were systematized by Muhammed ibn Idris al-Shaf’i in the eighth century c.e. See Muslim Women’s League, Intellectual Background: Islamic Sources of Information and their Development in Islamic Law 2 (visited Jan. 14, 2000) <http://www.mwlusa.org/pub_book_sources.shtml> [hereinafter Intellectual Background]. See also Kathryn J. Webber, The Economic Future of Afghan Women: The Interaction between Islamic Law and Muslim Culture, 18 U. Pa. J. Int’l. Econ. L. 1049, 1060 (1997). One commentator distinguishes these sources as follows: “Those sources from which the law may be derived are the Qur’an and the Sunna or example of the Prophet. . . . [T]hose sources through which the law may be derived represent either methods of legal reasoning and interpretation or the sanctioning instrument of consensus . . . .” Wael B. Hallaq, A History of Islamic Legal Theories 1 (1997). Some rank ijma ahead of qiyas as a source of law. See, e.g., Honarvar, supra note 39; at 361, Chaudhry, supra note 12, at 518–19.
42 See Fatima Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam 28 (1991) [hereinafter The Male Elite].
43 See Intellectual Background, supra note 41, at 3.
44 See Tove Stang Dahl, The Muslim Family: A Study of Women’s Rights in Islam 35 (1997). The Qur’an is divided into 114 sura and each sura is divided into verses. Citations to the Qur’an will be citations to the sura and then the verse: e.g., Sura IV, verse 34.
45 See id. at 36.
[E]ven in these [80] verses there are both gaps as well as doubts as to whether the legal injunction is obligatory or permissive, as indeed whether it is subject to public or to private sanctions. Thus it is appropriate to describe Islamic law as consisting of the Qur’anic legislation which was subsequently interpreted by succeeding generations and which was inclusive of much of the customary law of the Arabs.
Pearl, supra note 17, at 1.
46 See Honarvar, supra note 39, at 361. “The Sunnah are the sayings and practices of the Messenger Muhammad (P.B.U.H.), revealed to him by God in meaning, not exact text, as preserved in a written record called the Hadith. These authenticated traditions explain and illustrate some of the Qur’anic generalities and are a model of exemplary behavior for Muslims.” Chaudhry, supra note 12, at 519. “In the Islamic tradition, after the name of the Messenger Muhammed is spoken or written, Muslims pray for God’s peace and blessings to be upon him. The English abbreviation (P.B.U.H.) stands for the words ‘Peace Be Upon Him.’” Id. at 512 n.5.
47 Intellectual Background, supra note 41, at 3.
48 See Pearl, supra note 17, at 4.
Literally, Sunna means the “trodden path” and it is used to express the customary law prevalent in Arabia before the advent of Islam. After the revelation, the ‘trodden path’ continued to be accepted law for the Muslim community; but only so far as it had not been abrogated by Mohammed. The classical theory is that, on the advent of Islam the concept of Sunna became, for the Muslim, the model or normative behavior of the Prophet.
Id.
49 See Chaudhry, supra note 12, at 519. Debate continues in modern scholarly circles as to the actual origin of the hadith. See David S. Powers, Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance 1–8 (1986) for a description of this debate. Some “critical historians consider nearly all the legal hadith reports inventions of the eighth and ninth centuries.” Christopher Melchert, Islamic Law, 23 Okla. City U. L. Rev. 901, 906 (1998).
50 See Intellectual Background, supra note 41, at 3. “The Hadith is seen as evidence of the Sunna, or practice of the community. . . . It is self-evident that, for the classical jurist as for the religious Muslim today, Sunna and Hadith are consubstantial” (although some Western scholars think that the Sunna is anterior to the Hadith rather than being the reverse or consubstantial). Pearl, supra note 17, at 4.
51 The Male Elite, supra note 42, at 35. The transcribers also include with the Hadith the isnad, which is the list of the chain of narrators. See id.
52 See id. at 35–37; Intellectual Background, supra note 41, at 6–8. Muslim feminists use this argument to explain Hadith that appear sexist. See The Male Elite, supra note 42, at 35–37.
53 See Intellectual Background, supra note 41, at 2.
54 Id. at 6. In actuality, after it became apparent that some false hadith were being fabricated for political purposes, a science developed by which the accuracy of a hadith could be gauged. See Verma, supra note 15, at 10. Thus, the traditionalists rely not on all hadith but only on the ones that have been proved to be authentic. See id.
55 See Chaudhry, supra note 12, at 519.
56 See id.; Intellectual Background, supra note 41, at 3.
57 See Intellectual Background, supra note 41, at 3.
58 See Honarvar, supra note 39, at 361; Pearl, supra note 17, at 11; Chaudhry, supra note 12, at 519; Intellectual Background, supra note 41, at 4.
59 Intellectual Background, supra note 41, at 4.
60 Pearl, supra note 17, at 18. The schism resulted from a struggle for leadership following the death of the Prophet. Id. Civil war broke out during reign of the fourth Caliph and victory went to the Mulawuya—Umayyad dynasty. Id. The Shi’i remained allied with the Caliph and his descendants because he was married to the Prophet’s daughter. Id.
61 The followers of the Sunni school comprise about 85% of the current Muslim population. See Jane I. Smith, Islam, in Women in World Religions 237 (Arvind Sharma ed., 1987). The Sunnis are subdivided further into four schools that take their names from the scholars who founded them: Hanafi, Shafi’i, Maliki, and Hanbali. See Verma, supra note 15, at 19–22; John Makdisi, Fixed Shares in Intestate Distribution: A Comparative Analysis of Islamic and American Law, 1984 BYU L. Rev. 267, 271 n.7 (1984).
62 See generally Courtney W. Howland, The Challenges of Religious Fundamentalism to the Liberty and Equality of Women: An Analysis under the United Nations Charter, 35 Colum. J. Transnat’l L. 271 (1997).
63 See Kofsky, supra note 1, at 318–19.
64See Denise L. Carmody, Judaism, in Women in World Religions 185 (Arvind Sharma ed., 1987). Kofsky speaks of the “Lilith myth,” a story in which God created Lilith, a wife who deserted Adam because he insisted that she obey him. See Kofsky, supra note 1, at 319.
65 Genesis 2:7 (The Torah: Henry Holt & Co. 1996).
66 Genesis 2:21–22.
67 Genesis 2:18. One view is that the passages in the second chapter of Genesis are not separate from the passage in the first book but rather only “a sequel to the preceding chapter.” The Soncino Edition of the Pentateuch and Haftorahs 6 n.3(a) (J.H. Hertz ed., 2d ed. 1965) [hereinafter The Pentateuch and Haftorahs].
68 “Marriage is one of the most important milestones for Jewish men and women. It is considered the natural state of Jewish life, and necessary for personal fulfillment.” Marc S. Cwik, The Agunah Divorce Problem in Jewish Society: Exploring the Possibility of an International Law Solution, 17 Wis. Int’l L.J. 109, 109 (1999).
69 Genesis 2:24.
70 Id.
71 1 William Blackstone, Commentaries *442. Carmody notes that “in the traditional [Jewish] wedding ceremony, the bride is totally silent, projecting an image of effacement or nonpersonhood.” Carmody, supra note 64, at 204.
72 Leviticus 15:1–33.
73 These rules are discussed at length in Rachel Biale, Women and Jewish Law 146–74 (1984). Carmody notes that, although the impurity rules applied equally to men and women originally, “[h]istorically, however, menstruation became a cardinal focus of the rabbis’ fears and sexism.” Carmody, supra note 64, at 204.
74 Leviticus 12:1–5. Biale notes that
the reason for the doubling of the impure period after the birth of a girl is unclear. Perhaps it reflects, as has been suggested by some, the disappointment with the birth of a girl, but this would necessitate seeing the state of impurity as partially punitive, which does not seem to fit the intentions of Leviticus. One conjecture is that underlying this legislation is the sense that the birth of a female, who will one day herself menstruate and give birth, is seen as ‘doubly bloody’ and doubly impure.
Biale, supra note 73, at 152.
75 Id.
76 See Carmody, supra note 64, at 186. “Deborah is a mighty prophetess, Ruth is a noble daughter-in-law, and Esther is the saviour of her people.” Id.; see also Kofsky, supra note 1, at 321.
77 See Grunfeld, supra note 23, at 11–12, quoting Biblical passages such as Genesis 3:20, in which Adam named his wife Eve “because she was the mother of all living.”
78 The topics covered in this order are: “Sisters-in-law (Yebamoth, Yeb.); Marriage Deeds (Ketuboth, Ket.); Vows (Nedarim, Ned.); Nazirite-vow (Nazir, Naz.); Suspected Adulteress (Sotah, Sot.); Bills of Divorce (Gittin, Gitt.); Betrothals (Kiddushin, Kidd.)” An Introduction to the History and Sources of Jewish Law, supra note 17, at 119.
79 Grunfeld, supra note 23, at 12–13.
80 See Carmody, supra note 64, at 197; Kofsky, supra note 1, at 321.
81 Kofsky, supra note 1, at 322; see also Carmody, supra note 64, at 199.
82 See generally Carmody, supra note 64, at 200–06.
83 See Carmody, supra note 64, at 202. The first woman was admitted to the rabbinate in 1972. See id.
84 See Carmody, supra note 64, at 203.
85 See Howland, supra note 62, at 322. “Jewish fundamentalists are politically active in Israel.” Id.
86 Islamic fundamentalism is discussed infra at text accompanying notes 133–36.
87 Howland, supra note 62, at 271. Howland calls the subordination of women a “core feature” of fundamentalism in Buddhism, Christianity, Hinduism, Islam, and Judaism. Id.
88 Id. at 318.
89 Id. at 321.
90 Id. at 321–22.
91 Smith, supra note 61, at 235. The same sentiment is clearly also applicable to a study of the status of women in Judaism. The author concedes that, as a Western feminist, who is neither Muslim nor Jewish, her “outsider’s” view of these issues may well be imbued with a number of biases.
92 Honarvar, supra note 39, at 365.
93 Chaudhry, supra note 12, at 513.
94 Id.
95 Honarvar, supra note 39, at 365.
96 Islamic feminist Fatima Mernissi finds “fascinating” the degree to which modern Islamic scholars refuse to believe that any customs that favored “female sexual self-determination” existed prior to the advent of Islam. Fatima Mernissi, Beyond the Veil: Male-Female Dynamics in Modern Muslim Society 66 (1987) [hereinafter Beyond the Veil].
97 Muslim Women’s League, Women in Pre-Islamic Arabia 2 (visited Jan. 1, 2000) <http://www.mwlusa.org/pub_book_herstory.shtml> [hereinafter Pre-Islamic Arabia].
98 See Honarvar, supra note 39, at 356.
99 See Beyond the Veil, supra note 96, at 73–74; Honarvar, supra note 39, at 358; Pre-Islamic Arabia, supra note 97, at 3.
100 See Pre-Islamic Arabia, supra note 97, at 3.
101 Honarvar, supra note 39, at 357. “Of the two systems of kinship, the matrilineal was practiced among the settled communities and the patrilineal system was used by the nomads.” Id. In a matrilineal system, the children of the mother stayed with the mother’s tribe while in a patrilineal system, the identity of the child’s father determined the child’s tribe. Beyond the Veil, supra note 96, at 74.
102 Pre-Islamic Arabia, supra note 97, at 5.
103 In a “marriage by capture,” the woman was basically a slave of her husband. Pre-Islamic Arabia, supra note 97, at 6.
104 “In some other tribes, it was customary that the woman did not leave her own tribe but either married someone within the tribe or married a stranger who agreed to stay with her family . . . . The women of these tribes enjoyed more freedom and had the right to dismiss their husbands at will.” Pre-Islamic Arabia, supra note 97, at 6. The Prophet’s mother was the member of such a tribe. His father died when his mother was seven months pregnant with him. The Prophet stayed with his mother’s tribe until she died when he was six years old. See Beyond the Veil, supra note 96, at 69–70.
105 See Pre-Islamic Arabia, supra note 97, at 4. Infanticide of female children occurred primarily among poor communities where “girls . . . were viewed as less productive than boys.” Id. Female children were also sometimes killed because their fathers were afraid that, if captured during tribal warfare, the girls might shame the father by refusing to return to him after the war ended. See id. at 4.
106 See id. at 7. “It is reported that a man could have as many as 100 wives.” Id. The term “polygamy” is used here to refer both to “polygyny,” (the practice of having more than one wife) and “polyandry” (the practice of having more than one husband). Both polygyny and polyandry seem to have been practiced in pre-Islamic Arabia. See Pre-Islamic Arabia, supra note 97, at 7. However, polygamy does not seem to have been practiced in either Mecca or Medina. See Beyond the Veil, supra note 96, at 68.
107 See Chaudhry, supra note 12, at 513.
108 See Pre-Islamic Arabia, supra note 97, at 8. Bedouin customs probably did not favor women, but “one should be wary of assuming that customs among pastoralists were uniform in this respect . . . . [I]t should at least be noted that among the Rwala lords of the desert . . . not inconsiderable rights of inheritance for women [have been found to have existed].” Martha Mundy, The Family, Inheritance and Islam: A Re-examination of the Sociology of Fara-id Law, in Islamic Law: Social and Historical Contexts 30 (1988).
109 The Male Elite, supra note 42, at 27; see also Honarvar, supra note 39, at 382; Pre- Islamic Arabia, supra note 97, at 8.
110 See Pearl, supra note 17, at 122; Beyond the Veil, supra note 96, at 82.
In the tribal society of pre-Islamic Arabia the system of inheritance was designed to keep property within the individual tribe and maintain its strength as a fighting force. The tribe was patriarchal and patrilineal. Women occupied a subordinate and subjugated position within the group whose bond of allegiance was that of ‘asabiyya—descent through male links from a common ancestor. A woman who married into another tribe belonged henceforth, along with her children, to the tribe of the husband. The maternal or uterine relationship, therefore, lay outside the structure of tribal ties and responsibilities. In these circumstances the proper exploitation and preservation of the tribal patrimony meant, inter alia, the exclusion of females and non-agnate relatives from inheritance and the enjoyment of a monopoly of rights of succession by the male agnate relatives . . . .
Under Islam, however, the political and social scheme which had supported this customary system of succession was transformed. Politically, the bond of a common religious faith, with allegiance to the Prophet as the head of the community, transcended tribal ties and within the brotherhood of Muslims there was no place, in theory at any rate, for inter-tribal hostility or warfare. Socially, Islam emphasized the more immediate family tie existing between a husband, his wife, and their children, and aimed at elevating the status of the female within this group. These changes are mirrored in the novel rules of succession introduced by Islam.
N.J. Coulson, Succession in the Muslim Family 29 (1971) [hereinafter Succession in the Muslim Family].
111 See Aharon Layish, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Shari’a Courts in Israel 279 (1975); Honarvar, supra note 39, at 382. As will be examined later in this Article, the Shi’a approach to inheritance does not use the patrilineal base as its foundation. See infra text accompanying note 208.
112 See infra text accompanying notes 204–05.
113 See Honarvar, supra note 39, at 369.
114 See Pre-Islamic Arabia, supra note 97, at 9.
115 Benazir Bhutto, Politics and the Muslim Woman, in Liberal Islam: A Sourcebook 111 (Charles Kurzman ed., 1998).
116 See Jan Goodwin, Price of Honor: Muslim Women Lift the Veil of Silence on the Islamic World 42 (1994); Bhutto, supra note 115, at 111.
117 See Bhutto, supra note 115, at 111. As noted supra note 60, the split between the Sunni and Shi’a schools related to the fact that the leader of the Shi’i was married to Fatima.
118 The guardianship of women by men is required, among other reasons, because of women’s “sexual irresponsibility.” Urfan Khaliq, Beyond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah, 2 Buff. J. Int’l L. 1, 14 (1995).
119 An alternative version of this rule states that the rule applies only in debtor-creditor transactions, that it is an exception to the general rule that women can serve as witnesses equally with men, and that its original purpose (to secure accurate testimony as women usually did not engage in commercial transactions and thus might be more likely to make a mistake) may have disappeared in modern times when women are actively involved in the commercial world. Muslim Women’s League, Women in Society: Legal Rights (visited Jan. 19, 2000) <www.mwlusa.org/pub_book_legalrights.shtml>.
120 Carolyn Ratner, Book Review, Islamic Laws as Violations of Human Rights in the Sudan: God Has Ninety-Nine Names, by Judith Miller, 18 B.C. Third World L.J. 137, 150 (1998).
121 Sura IV, verse 34, The Holy Qur’an 51 (Shakir transl.).
122 John Tochukwu Okwubanego, Female Circumcision and the Girl-Child in Africa and the Middle East: The Eyes of the World are Blind to the Conquered, 33 Int’l Law. 159, 167 (1999). It is estimated that one hundred million women have undergone some form of female circumcision. See Goodwin, supra note 116, at 334.
123 See discussion of hadith, supra at text accompanying notes 49–54.
124 Amina Wadud-Muhsin, Qur’an and Women, in Liberal Islam: A Sourcebook 128 (Charles Kurzman ed., 1998). Wadud-Muhsin’s analysis of the Qur’an includes a discussion of how the Arabic language itself, which contains no neuter form, must be taken into account when determining whether certain passages reflect an intent to establish males—as opposed to humankind in general—in a position of superiority. See id. at 129–30.
125 “This understanding [that social norms may be the major obstruction to women’s rights in Islamic countries] supports the claim of many Islamic feminists that a rejection of the oppression of women does not necessarily involve a rejection of Islam.” Webber, supra note 41, at 1052–53. It is beyond the scope of this article to attempt to further a debate whose intensity dominates both modern scholarly texts and the political and social life of many Muslim societies.
126 Bhutto, supra note 115, at 111.
127 Id.
128 See Pamela Goldberg, Seeing through Women’s Eyes: A Review Essay of Price of Honor: Muslim Women Lift the Veil of Silence on the Islamic World, 11 N.Y.L. Sch. J. Hum. Rts. 603, 608 (1994). “The veiling of women has become virtually emblematic of Muslim extremism throughout the world.” Id.
129 See Sura XXXIII, verse 59, The Holy Qur’an 281. Verse 59 of sura XXXIII arguably alludes to the veiling of women when it states: “say to your wives and daughters and the women of the believers that they let down upon them their overgarments, this will be more proper, that they may be known, and that they will not be given trouble . . . .” In verse 31 of sura XXIV, “believing women” are admonished to “cast down their looks and guard their private parts and do not display their ornaments except what appears thereof, and let them wear their head-coverings over their bosoms . . . .” Sura XXXIII, verse 59, The Holy Qur’an 281. Men also were told to “cast down their looks and guard their private parts, that is purer for them.” Sura XXIV, verse 30, The Holy Qur’an 230. There is some controversy as to whether the veiling and seclusion of wealthy Arabian women for the purpose of protection was common at the time the Qur’an was revealed. Compare Wadud-Muhsin, supra note 123, at 132 (stating that such was the case) with Anwar Hekmat, Women and the Koran: The Status of Women in Islam 199 (1997) (stating that Arabian women wore only a headdress, and “[c]omplete concealment as it is practiced today did not exist”).
130 Sura XXXIII, verse 53, The Holy Qur’an 280.
131 See The Male Elite, supra note 42, at 85–88.
132 See id. at 97–99.
133 Id. at 100–01.
134 See generally Goodwin, supra note 116.
135 See generally Anastais Telesetsky, In the Shadows and Behind the Veil: Women in Afghanistan under Taliban Rule, 13 Berkeley Women’s L.J. 293 (1998); Webber, supra note 41, at 1066–67.
136 See Howland, supra note 62, at 306–16.
137 Id. at 307.
138 See Cwik, supra note 68, at 109; see also Honarvar, supra note 39, at 365. The Prophet is reputed to have said that “marriage is half the religion.” Goodwin, supra note 116, at 36.
139 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 136; Honarvar, supra note 39, at 368; Kofsky, supra note 1, at 323.
140 See id. The Arabic term that is still sometimes used to describe an unmarried girl translates as “another’s wealth.” Goodwin, supra note 116, at 44.
141 Ruth Link-Salinger, Jewish Law in Our Time 68–69 (1982); Pearl, supra note 17, at 69; Principles of Jewish Law, supra note 12, at 367. The Torah speaks of a man having two wives. Deuteronomy 21:5–17. The Mishnah refers to “co-wives.” Yebamoth 1, The Mishnah 218–21 (Danby transl.).
142 See Biale, supra note 73, at 49.
143 See id.
144 See id.
145 See id. at 50. One commentator notes that monogamy was prompted by social and economic concerns rather than religious ones:
When we find [Cairo] Geniza society being essentially monogamous, the reason was not a new moral, legal, or religious concept of marriage, but the historical fact that the Jewish people had become completely urbanized, with the “bourgeoisie” setting the tone. Parents, after having toiled all their lives to scrape together a sumptuous dowry for their daughter, saw to it that she should not suffer in marriage. They stipulated in the marriage contract that the husband was not permitted to take a second wife. In case he did, he had to pay the late installment to the marriage gift in full—a most efficient deterrent—and to set his wife free at her demand, even if he did not wish to do so. Costly fines were also stipulated.
Link-Salinger, supra note 141, at 68–69.
146 See Honarvar, supra note 39, at 369. Verse 3 of sura IV provides: “And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four, but if you fear that you will not do justice between them, then (marry) only one . . . .” Sura IV, verse 3, The Holy Qur’an 69.
147 See Beyond the Veil, supra note 96, at 70. Yet during the life of his first wife, Khadija, the Prophet did not marry any additional wives. Bhutto, supra note 115, at 110. It is also reported that the Prophet opposed his son-in-law when he sought to marry a woman in addition to the Prophet’s beloved daughter, Fatima. See Beyond the Veil, supra note 96, at 70.
148 See Pearl, supra note 17, at 1; William Montgomery Watt, A Short History of Islam 92–93 (1996).
149 See Principles of Jewish Law, supra note 12, at 414. The get is the “bill of divorcement.” Id. If a woman does not receive the get, she is destined to live life as an agunah, a “woman chained to a dead marriage.” Cwik, supra note 68, at 110.
150 See Honarvar, supra note 39, at 372–73. For a discussion of the reservation of rights in the marriage contract, see generally John L. Esposito, Women in Muslim Family Law 23–24 (1982).
151 See Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine 38–39 (1998); Heather Lynn Capell, After the Glass has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel, 33 Tex. Int’l L.J. 331, 334–35 (1998); Honarvar, supra note 39, at 371.
152 See Biale, supra note 73, at 80.
153 See Kofsky, supra note 1, at 324–25.
154 See Biale, supra note 73, at 80.
155 See id.
156 See Capell, supra note 150, at 335; Kofsky, supra note 1, at 326.
157 See Kofsky, supra note 1, at 326.
158 David Werner Amram, The Jewish Law of Divorce According to the Bible and Talmud 116 (1975); Irwin W. Haut, Divorce in Jewish Law and Life 7–8 (Studies in Jewish Jurisprudence Vol. V, 1983).
159 See Haut, supra note 158, at 9.
160 See An Introduction to the History and Sources of Jewish Law, supra note 17, at 13; Kofsky, supra note 1, at 330.
161 See Principles of Jewish Law, supra note 12, at 391; Kofsky, supra note 1, at 329.
162 See Principles of Jewish Law, supra note 12, at 391.
163 See id. at 394.
164 See id. at 395.
165 One verse of the Qur’an implies that, in pre-Islamic law, wives were subject to being inherited as part of their husband’s estate. Sura IV, verse 19 provides in part: “O you who believe! It is not lawful for you that you should take women as heritage against (their) will.” The Holy Qur’an 50. See Powers, supra note 49, at 55.
166 Pearl, supra note 17, at 2–3.
167 Sura IV, verse 4 of the Qur’an states: “And give women their dowries as a free gift, but if they of themselves be pleased to give up to you a portion of it, then eat it with enjoyment and with wholesome result.” The Holy Qur’an 69. Webber notes that studies have shown that the mehr is often given to the woman’s family rather than to her. See Webber, supra note 41, at 1073–74.
168 See Pearl, supra note 17, at 58-59.
The traditional Hanafi and Maliki jurists developed a minimum limit to the specified dower, by the use of analogy with the minimum value of stolen goods which rendered a thief liable to one of the hudud penalties; namely, amputation of the hand. The sum was 10 dihrams in Hanafi law and 3 dihrams in Maliki law . . . . No maximum limits were laid down by the early jurists.
Pearl, supra note 17, at 58. The husband must pay the amount that is announced or “specified . . . if he intended to do so, but often the husband will claim that there was a private agreement to pay less and this is what is enforced.” Id. at 59.
169 The amount of unspecified mehr is based on the mehr paid to similarly situated women. See id. at 61.
170 See id. at 58.
171 See id. at 63.
172 See Pearl, supra note 17, at 62; Honarvar, supra note 39, at 368.
173 See Honarvar, supra note 39, at 368. “It should be pointed out that although mehr (dower) is an actionable claim, in real life, it is not common practice for the wife to make such demand.” Id.
174 See id. “The issue generally comes up at the dissolution of marriage. Even then, the wife, under intense pressure from the husband, is likely to forego her claim in exchange for a divorce.” Id.
175 Chaudhry, supra note 12, at 548.
176 See Webber, supra note 41, at 1064.
177 See id. In the Hanafi school, lack of support may constitute sufficient grounds for annulment of the marriage. See Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine 82–83 (1998).
178 See Chaudhry, supra note 12, at 541–42; Webber, supra note 41, at 1069. However, although “[a] woman is always guaranteed sufficient care, and she has no legal obligation to support anyone,” her support is often the leverage by which her male family members persuade her to give up her rights of inheritance. Chaudhry, supra note 12, at 541–42; Webber, supra note 41, at 1069.
179 Rabbi Grunfeld, however, states that the inheritance laws
flow from the concept of unity of the family. The family as a religious, moral, and sociological unit is concerned not only with the relationship of husband and wife, parents and children, and the latter’s education, but with the acquisition of financial means to create the where-withal for life’s physical sustenance which is necessary for the achievement of life’s spiritual aims. When the father and bread-winner dies, it is therefore essential and considered a natural law that the worldly goods he has acquired in his lifetime should be passed on to members of the family who continue his life’s purpose. The concept of the family, however, is taken in a wider sense, comprising not only direct descendants, but also ascendents and their offspring.
Grunfeld, supra note 23, at 10.
180 Moses explained that daughters who inherit must stay with the tribe: “So shall no inheritance into the family of the children of Israel remove from tribe to tribe; for the children of Israel shall cleave every one to the inheritance of the tribe of his fathers. And 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.” Numbers 36:7–9. Later Sages limited the duty to marry within the tribe to the Biblical generation only. Principles of Jewish Law, supra note 12, at 446.
181 Numbers 27:8–11.
182 The Torah indicates that the eldest son would receive a double share. Deuteronomy 21:17; Principles of Jewish Law, supra note 12, at 434. However, Hiers points out that this portion of Deuteronomy is illustrative of a practice that is never expressly directed and rarely even referred to in any other Biblical text. See Richard H. Hiers, Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, 10 J. L. & Rel. 121, 142–43 (1993–94).
183 Baba Bathra 8:2, The Mishnah 376. A footnote indicates that the last sentence refers to the offspring of the father who are not also the direct descendants of the decedent. See id.
184 Commentary in the Babylonian Talmud explains that the spelling used in the Torah for the phrase “he have no [son] or [daughter]” indicates that the verse requires an examination not only of whether the decedent had a son (or daughter) but also of whether there was someone who could stand in the son’s (or daughter’s) place—that is, a descendant of the son or daughter. Talmud Bavli, Bava Basra 115a. (Schottenstein ed. 1994) (In this edition, the Baba Bathra is referred to as the Bava Basra.)
185 The Babylonian Talmud contains an extensive discussion of the bases for determining that the sons and daughters of the decedent precede the decedent’s father in the order of succession. Talmud Bavli, Bava Basra 108a–b.
186 The Sadducees, who are often the dissenters in discussions in the Talmud, adhered strictly to the written law. Cohn, supra note 30, at viii.
187 Talmud Bavli, Bava Basra 115b. “If the deceased’s sole survivors should be a daughter and a son’s daughter, the latter will inherit the whole estate since she takes the place of her father to the exclusion of her sister: the Sadducees, however, held the opinion that in such event the inheritance is shared between the deceased’s daughter and his granddaughter (BB 115–116a).” Principles of Jewish Law, supra note 12, at 447.
188 Lecturer in Jewish Law, Hebrew University of Jerusalem. Principles of Jewish Law, supra note 12, at 866.
189 Id. at 446.
190 See id.
191 Rabbinical Judge and member of the London Beth Din (Court of the Chief Rabbi). Grunfeld, supra note 23, at xvii.
192 Id. at 10.
193 Id. A similar system is described as the “Order of Inheritance as developed by later Jewish law” in The Pentateuch and Haftorahs, supra note 67, at 692 n.11.
194 Under Rabbi Grunfeld’s interpretation, not only do sons and sons’ descendants preclude daughters, but all male relatives and their descendants take priority over females of equal relationship and their descendants. Grunfeld, supra note 23, at 10.
195 See id.
196 See id. at 11.
197 Rabbi Grunfeld notes that even orthodox Jews are making wills, with the help of orthodox solicitors. Grunfeld, supra note 23, at 100.
198 See Hiers, supra note 182, at 147.
199 See Baba Bathra 8:5, The Mishnah 377 (Danby transl.).
200 Baba Bathra, 8:6 provides in part: “If a man died and a testament was found bound to his thigh, this counts as nothing. But if he [had delivered it and] through it granted title to another, whether of his heirs or of such as were not his heirs, his words remain valid.” Baba Bathra 8:6, The Mishnah 377.
201 See Principles of Jewish law, supra note 12, at 453. This gift is called a mattenat bari. See id.
202 See id. This gift is called a mattenat shekhiv me-ra. See id.
203 See id. at 455. This gift, called a mezavveh mehamt mitah, is one made when a person is seriously ill (though not dying), about to face execution, or about to set out on a caravan or sea voyage. See id.
204 See Grunfeld, supra note 23, at 16. Baba Bathra 8:5 provides: “If a man assigned his goods to others and passed over his sons, what he has done is done, but the Sages have no pleasure in him.” Baba Bathra 8:5, The Mishnah 377.
205 Powers, supra note 49, at 8; Honarvar, supra note 39, at 380.
206 “The estate available for the legal heirs consists of all the assets of the deceased that remain after the satisfaction of funeral expenses, debts and valid bequests.” Succession in the Muslim Family, supra note 110, at 40.
207 This system is spelled out in Sura IV, verses 7, 11, and 12. The Holy Qur’an 70–71.
208 Sura IV, verse 7 states: “Men shall have a portion of what the parents and the near relatives leave, and women shall have a portion of what the parents and the near relatives leave, whether there is little or much of it: a stated portion.” The Holy Qur’an 70. “Female heirs suffer from no disability, at least in Sunni law, to succeed to land or real estate. Each heir’s entitlement is simply expressed in terms of a fractional share and attaches in specie to the various properties which make up the inheritance.” Succession in the Muslim Family, supra note 110, at 40. Tradition teaches that the Prophet delivered this verse and other inheritance verses after the wife of a deceased man and her daughters complained to the Prophet that the decedent’s executors refused to deliver any of his property to her. Powers, supra note 49, at 11–12, 53–54. Powers notes, however, that “the historical accuracy of this representation is highly suspect.” Id. at 54.
209 See Pearl, supra note 17, at 145. Some of the specified takers in the Shi’a system are given prescribed shares, while others take the residue. See Verma, supra note 15, at 483.
210 See Succession in the Muslim Family, supra note 110, at 33.
The system of priorities rests basically upon the principles of agnatic succession recognised by the customary tribal law in pre-Islamic Arabia. . . . [The Qur’an] merely modified the existing customary law by adding thereto as supernumerary heirs a number of relatives who would normally have had no rights of succession under the customary law. As a result of this approach the essential character of the developed Sunni law of inheritance is that of an agnatic system of succession mitigated by the Qur’anic provisions. Male agnate relatives generally remain in a dominant position, and the consolidated system of priorities covering the members of the inner family as a whole was achieved by absorbing the new Qur’anic heirs within the framework of the customary rules of priority operating among male agnates.
Id. Powers takes issue with this theory (which he admits represents “the general consensus of western scholars on the subject”). Powers, supra note 49, at 90. Powers hypothesizes that the succession law introduced by the Prophet was designed not to complement but rather to replace completely the pre-Islamic laws. See id. at 106. Thus Powers articulates the Shi’a approach. The Shi’i jurists rejected “the notion of continuing validity of pre-Islamic practice. There are, of course, political reasons for the differences [between the Shi’a and the Sunni approaches], not the least in giving priority to daughter’s children, but the major reason for the disparity must be sought in the continuity of the tribal aristocracy of the Sunnis as compared with the limited family grouping of the Shi’i.” Pearl, supra note 17, at 147.
211 See Verma, supra note 15, at 415.
212 See Makdisi, supra note 61, at 271. “The term ‘agnatic’ characterizes the relationship through male descent or ascent. The agnatic granddaughter is the daughter of a son or of a son’s son or of a son’s son’s son, etc.; the agnatic grandfather is the father of the father or of the father’s father or of the father’s father’s father, etc.” Id. at 271 n.6.
213 See Neil S. Coulson, A Comparison of the Law of Succession in the Islamic and British Legal Systems, 26 Am. J. Comp. Law 227, 227–28 (1978); Makdisi, supra note 61, at 279. For example, if a decedent is survived only by his mother and his agnatic uncle, his mother will take her prescribed one-third share, and the uncle will take the rest as a residuary taker. “Besides guaranteeing the surviving spouse a just inheritance, the essential purpose of the Islamic law of succession is to preserve the decedent’s property within the extended patriarchal family or tribal group, within which the rights of the male members are dominant.” Coulson, supra at 228. Verma offers a slightly different description of the residuary takers in that he includes male and female descendants of the decedent, the decedent’s male descendants and the decedent’s father’s male descendants. See Verma, supra note 15, at 142.
214 Coulson, supra note 213, at 231. Coulson believes this to be a strict rule of universal application, although he notes that this strict rule is being abandoned in some countries in favor of a rule that would allow those of more remote degree to take their parent’s share by representation. See id. at 231. Verma, on the other hand, believes that this rule does not allow a named sharer who is nearer in blood to exclude a residuary taker. Thus, a daughter (a named taker) excludes a sister (also a named taker) because the daughter is a closer relation. However, a daughter does not exclude a deceased son’s daughter (a residuary taker) so the daughter would share the estate with the son’s daughter. See Verma, supra note 15, at 427–28.
215 Verma, supra note 15, at 416. See Makdisi, supra note 61, at 282–88 for a thorough discussion of this class of takers.
216 See Makdisi, supra note 61, at 282.
217 See Pearl, supra note 17, at 123–24; Succession in the Muslim Family, supra note 109, at 35; Makdisi, supra note 61, at 274.
218 These are referred to as “uterine” siblings. Makdisi, supra note 61, at 274 n.14.
219 These are referred to as “germane” sisters. Id. at 274 n.15.
220 These are referred to as “consanguine” sisters. Id. at 274 n.16.
221 This is the father’s father or “father’s father how high soever.” Succession in the Muslim Family, supra note 110, at 35. Thus the category may include a great-grandfather or a great-great grandfather, etc.
222 According to Pearl, the grandmother named in this list must be a “true” grandmother—that is, a grandmother whose connection with the decedent does not occur through a female relative. Pearl, supra note 17, at 123–24. Coulson speaks of the “grandmother (maternal and paternal (however high soever)),” which indicates that this category may include great-grandmothers and great-great-grandmothers, etc. Succession in the Muslim Family, supra note 110, at 35. See infra at text accompanying notes 325–30 (discussion of grandmothers’ inheritance rights).
223 This would be the daughter, grand-daughter, great-granddaughter, etc. of a son of the decedent. See Pearl, supra note 17, at 123–24.
224 See Makdisi, supra note 61, at 274. “Three of these relatives—the granddaughter, grandfather and grandmother—were not in fact specifically designated by the Qur’an as legal heirs but Sunni jurisprudence added them to the list . . . through the doctrine of analogy (qiyas).” Succession in the Muslim Family, supra note 110, at 35. Powers notes that these three heirs were added “by analogy to the daughter, father, and mother.” Powers, supra note 49, at 9 n.24.
225 See id. at tbl. 1.
226 See Verma, supra note 15, at 426. The share may also be reduced if the combination of prescribed shares is greater than one. “To obtain the necessary unity all the basic Qur’anic portions are reduced pro rata.” Succession in the Muslim Family, supra note 110, at 47. “The estate of a deceased Muslim may be over- subscribed, in the sense that the sum of the fractional portions therein to which surviving Qur’anic heirs are entitled may exceed unity. Equally, an estate may be undersubscribed when the sum of fractional portions of Qur’anic heirs fall short of unity and there is no residuary heir to take the surplus.” Succession in the Muslim Family, supra note 110, at 46–47.
227 See Verma, supra note 15, at 426; Makdisi, supra note 61, at 274, tbl. 1.
228 See Makdisi, supra note 61, at 274, tbl. 1. If the descendant is a child, it does not matter whether the child is the child of the surviving spouse, so long as the child is the child of the deceased spouse. See Succession in the Muslim Family, supra note 110, at 41.
229 See Verma, supra note 15, at 426; Makdisi, supra note 61, at 274, tbl. 1.
230 “The right of a legal heir . . . is a defined quota share in each and every item of property that comprises the estate. Settlement or composition between the heirs, of whom there will normally be a considerable number, may result in the distribution of various properties among them in accordance with the value of their quantitative entitlement.” Succession in the Muslim Family, supra note 110, at 2.
231 See Verma, supra note 15, at 429. Makdisi’s Table indicates that the mother will take the residue if there is neither a surviving agnatic descendant or two or more brothers or sisters. See Makdisi, supra note 61 at 275, tbl. 1. However, as will be noted (infra at text accompanying notes 244–47), the daughter’s share is always one-half of the son’s share.
232 Succession in the Muslim Family, supra note 110, at 38.
233 See id.
234 See Pearl, supra note 17, at 146, tbl. 39.
235 See Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law 105 (14th ed. 1955).
236 See Verma, supra note 15, at 482–84.
237 See id. at 483.
238 See Mulla, supra note 235, at 98.
239 See id.
240 Pearl, supra note 17, at 146. “The [Shi’a] solution to heirship is to concentrate the estate in the hands of the nearest relative of either sex, whereas the Sunni solution is to introduce into the succession an almost infinitely extensible definition of the agnatic group.” Mundy, supra note 108, at 41.
241 See id. at 40.
242 Islamic law also allows gifts during life and the establishment of gifts in trust. See Chaudhry, supra note 12, at 548.
243 See Layish, supra note 111, at 280. The prohibition against bequeathing more than one-third of the estate to a legal heir is extended to cover transfers made by the decedent during the last year of life. See Coulson, supra note 213, at 228. “At the point in time when the propositus enters his ‘death sickness’ the personal debts and the claims of the compulsory heirs attach to the property. The propositus, therefore, cannot defeat the expectancies of the claimants by donating, or selling below value, parts of the estate which amount to more than one-third of the net estate. Such a donation, like the bequests [above one-third], is ultra vires and depends for its efficacy on the consent of the heirs. The limitations imposed upon bequests are thus extended to cover gifts made by dying persons.” Pearl, supra note 17, at 120. The prohibition does not appear in the Qur’an but is reputed to have been uttered by the Prophet during his life. The rule took shape as a legal maxim probably during the eighth-ninth centuries c.e. Powers, supra note 49, at 158–59.
244 Coulson notes that some countries have abandoned the Sunni rule in favor of the Shi’a rule. See Coulson, supra note 213, at 229.
245 Scholars disagree as to exactly what those circumstances are. Chaudhry writes of the “common misperception, by Muslims and non-Muslims alike, that a woman will only receive one-half the share that a man receives precisely because she is a woman, thereby demonstrating the inherent inferiority of Muslim women in Islam.” Chaudhry, supra note 12, at 516. “It is only the daughter or the full sister who receive half of what males of equal status receive, a son or full brother, respectively, if they are inheriting jointly as Residuaries.” Id. at 537. Coulson, on the other hand, speaks of the “double share to the male” rule as a more expansive rule that is “fundamental to Islamic succession and is emphatically asserted in the Qur’an itself. It even applies to Qur’anic entitlement, so that a surviving husband takes a portion twice as large as that which a surviving wife would take under similar circumstances.” Coulson, supra note 213, at 228.
246 See Chaudhry, supra note 12, at 516.
247 See id.
248 See Chaudhry, supra note 12, at 540, 543. Former Prime Minister of Pakistan, Benazir Bhutto, urges that the double share given to a son be viewed “in the whole aspect, because it is made abundantly clear that the woman’s share is for the use of the woman alone. A man gets two-thirds. One third—the equivalent of the woman’s is for his own use. The additional one-third that a man gets is to provide for his wife and children. This is the obligation on the man. He gets that extra share so the he can provide for the family, the wife, and the children.” Bhutto, supra note 115, at 108.
249 Sura IV, verse 11, The Holy Qur’an 48–49.
250 See infra text accompanying notes 316–21 for a description of how these shares are calculated.
251 The drafting of this resolution is described in Powers, supra note 49, at 57–62.
252 Powers hypothesizes that the original verses should not have been read to extend the right of inheritance to spouses, but rather to have limited it to blood kindred of the decedent. With this interpretation, the tortured reading of verses to ensure the male double portion would not have been necessary. See Powers, supra note 49, at 74–78.
253 See infra text accompanying notes 263, 305–09.
254 See Principles of Jewish Law, supra note 12, at 379.
255 See Rev. Dr. M. Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times 107 (1987).
256 See supra text accompanying notes 152–62 for a definition of the ketubah.
257 See Principles of Jewish Law, supra note 12, at 380.
258 See Mielziner, supra note 255, at 106; Principles of Jewish Law, supra note 12, at 448.
259 See supra text accompanying notes 36–37 for a definition of takkanot.
260 See Mielziner, supra note 255, at 107; Principles of Jewish Law, supra note 12, at 448.
261 Sura IV, verse 12 provides in part as follows: “And you shall have half of what your wives leave if they have no child, but if they have a child, then you shall have a fourth of what they leave after (payment of) any bequest that may have bequeathed or a debt . . . .” The Holy Qur’an 49.
262 The Shi’a system provides a similar share for the husband. See Verma, supra note 15, at 484.
263 See Makdisi, supra note 61, at 274, tbl. 1.
264 See id. If the estate is oversubscribed, the surviving spouse’s share may be subject to reduction. However, if the estate is undersubscribed, the surviving spouse is not allowed to enjoy an increased share. See Succession in the Muslim family, supra note 110, at 50.
265 Under the Shi’a approach, the remaining portion of the estate is divided among the appropriate named takers. See Verma, supra note 15, at 478.
266 Makdisi, supra note 61, at 282.
267 Sura IV, verse 12, The Holy Qur’an 49.
268 Hiers, supra note 182, at 130. However, Hiers points out that some Biblical reference (e.g., the Book of Ruth, 4:3) indicate some inheritance by wives of their husbands’ property. See id.
269 See supra text accompanying notes 152–62 for a definition of the ketubah.
270 See An Introduction to the History and Sources Of Jewish Law, supra note 17, at 295; Kofsky, supra note 1, at 333; Ariel Rosen-Zvi & Asher Maoz, Principles of Intestate Succession in Israeli Law, 22 Israel Law Rev. 287, 290–91 (1988).
271 See supra text accompanying notes 37–38 for a definition of takkanot.
272 See An Introduction to the History and Sources Of Jewish Law, supra note 17, at 295; Principles of Jewish law, supra note 12, at 449.
273 See Kofsky, supra note 1, at 333.
274 See id.
275 See supra text accompanying notes 172–75.
276 See Succession in the Muslim Family, supra note 110, at 41. Sura IV, verse 12 provides in part as follows: “and they [wives] shall have a fourth of what you leave if you have no child, but if you have a child, then they shall have the eighth of what you leave after (payment of) a bequest you may have bequeathed or a debt . . . .” The Holy Qur’an 49.
277 See Makdisi, supra note 61, at 274, tbl. 1.
278 See id. The Shi’a share for the wife is the same. See Verma, supra note 15, at 484.
279 See Pearl, supra note 17, at 124; Succession in the Muslim family, supra note 110, at 41.
280 See supra note 214.
281 See supra text accompanying note 267.
282 See Principles of Jewish Law, supra note 12, at 379. Kofsky reports the age of majority as age 12. See Kofsky, supra note 1, at 334.
283 See Kofsky, supra note 1, at 335. See supra text accompanying notes 152–62 for a definition of the ketubah.
284 “If a man died and left sons and daughters, and the property was great, the sons inherit and the daughters receive maintenance; but if the property was small, the daughters receive maintenance and the sons go a-begging.” Baba Bathra 9:1, The Mishnah 378.
285 See Principles of Jewish Law, supra note 12, at 449.
286 “According to some scholars, a daughter is also entitled to receive a dowry out of her deceased mother’s estate, but this is disputed by other scholars.” Principles of Jewish Law, supra note 12, at 450.
287 See id.
288 See id.
289 As noted supra at text accompanying notes 186–87, a disagreement developed among scholars as to what happens under the Biblical instruction if a father is survived by a daughter and the daughter of a son.
290 See supra text accompanying notes 186–87.
291 Hiers points out that, in Chapter 31 of the Book of Genesis, Rachel and Leah seemed to expect that they would inherit from their father’s estate even though he did have sons. He posits the following explanation: “Possibly daughters did inherit under Syrian law, at least if they were older than their brothers. It has been suggested that pursuant to practices attested at Nuzi, Laban had adopted Jacob, and that this relationship is in the background of their property transactions and other dealings. The women’s complaint that their father, Laban, had been ‘using up the money given for us’ (31:15) could refer to their dowry, which may have been in addition to their expected inheritance.” Hiers, supra note 182, at 128.
292 Numbers 27:8.
293 Numbers 36:4.
294 Numbers 36:8. One explanation for this requirement is that the daughter’s inheritance was in fact regarded as a dowry. See An Introduction to the History and Sources Of Jewish Law, supra note 17, at 5. Hiers questions whether the rule was that “only unmarried daughters of sonless fathers inherited from their fathers” and refers to the Book of Tobit 14:12–13, in which Tobias, rather than his wife, inherited from his wife’s parents. Hiers, supra note 182, at 129.
295 Principles of Jewish Law, supra note 12, at 446. Grunfeld finds the unequal treatment of daughters difficult to reconcile with what he views as the Torah’s insistence on the “dignity of Jewish womanhood.” Grunfeld, supra note 23, at 11. However, he concludes that this apparent anomaly is “one of the mysteries of the divine law that transcends human understanding.” Id. at 14.
296 See Principles of Jewish Law, supra note 12, at 447.
297 See id. at 449.
298 The term “Ashkenazi” refers to “Jewish life and settlements in Northwest, Central, and eventually Eastern Europe.” An Introduction to the History and Sources of Jewish Law, supra note 17, at 241.
299 See Principles of Jewish Law, supra note 12, at 450.
300 Talmud Bavli, Bava Basra 111a.
301 See id.
302 See id.
303 See id.
304 Baba Bathra 8:4, The Mishnah 377.
305 See Verma, supra note 15, at 482; Makdisi, supra note 61, at 274–75, tbl. 1. Sometimes, the daughter may take as a residuary taker rather than as a taker of a prescribed share. See id.
306 Sura IV, verse 11 provides in part as follows: “Allah enjoins you concerning your children: The male shall have the equal of the portion of two females; then, if they are more than two females, they shall have two-thirds of what the deceased has left, and if there is one, she shall have the half . . . .” The Holy Qur’an 49.
307 See Verma, supra note 15, at 487; Makdisi, supra note 61, at 274–75, tbl.1.
308 See id.
309 See Verma, supra note 15, at 487.
310 See Grunfeld, supra note 23, at 10.
311 See supra text accompanying notes 259–60.
312 Sura IV, verse 11 provides in part as follows:
and as for his parents, each of them shall have the sixth of what he has left if he has a child, but if he has no child and (only) his two parents inherit him, then his mother shall have the third; but if he has brothers, then his mother shall have the sixth after (the payment of) a bequest you may have bequeathed or a debt . . . .
The Holy Qur’an 49.
313 See Succession in the Muslim family, supra note 110, at 43–44.
314 See Verma, supra note 15, at 430.
315 See Succession in the Muslim family, supra note 110, at 43–44.
316 See Verma, supra note 15, at 430.
317 See id.
318 See Makdisi, supra note 61, at 275 n.20.
319 See Verma, supra note 15, at 439, 443. See supra text accompanying notes 250–52 for a discussion of how this interpretation evolved.
320 See Verma, supra note 15, at 443.
321 See Succession in the Muslim family, supra note 110, at 45–46. If the mother’s share was not reduced to being a share of the residue and the decedent was survived by a husband and parents, the mother would take one-third of the estate and the father would only take one-sixth. See id.
322 See supra text accompanying notes 186–87.
323 As noted supra at text accompanying notes 191–93, Rabbi Grunfeld’s approach places the decedent’s brothers and brothers’ issue ahead of sisters and sisters’ issue.
324 See supra text accompanying notes 191–93.
325 Succession in the Muslim family, supra note 110, at 60.
326 See id.
327 See id. at 61–62.
328 See id. at 60.
329 See supra note 61.
330 See Succession in the Muslim family, supra note 110, at 61; Makdisi, supra note 61, at 277 n.32.
331 There is some debate as to what exact amount sisters inherit. Sura IV, verse 12 provides in part as follows:
and if a man or a woman leaves property to be inherited by neither parents nor offspring, and he (or she) has a brother or a sister, then each of them two shall have the sixth, but if they are more than that, they shall be sharers in the third (after payment of) any bequest that may have been bequeathed or a debt that does not harm (others) . . . .
Sura IV, verse 176, on the other hand, provides in part:
if a man dies (and) he has no son and he has a sister, she shall have half of what he leaves, and he shall be her heir if she has no son; but if there be two (sisters), they shall have two-thirds of what he leaves; and if there are brethren, men and women, then the male shall have the like portion of two females . . . .
Professor Makdisi explains that the “consensus reached in Islam” was that that “verse IV, 12 refers to uterines and verse IV, 176 refers to germanes and consanguines.” Makdisi, supra note 61, at 272–73 n.12; accord Succession in the Muslim family, supra note 110, at 65. Professor Makdisi notes, however, that a recent alternative interpretation applies the 12th verse to testate succession and the other verse to intestate succession. See Makdisi, supra note 61, at 272–73 n.12. Professor Coulson notes that the Qur’anic provisions relating to siblings are
as in other aspects of the law . . . only the bare rudiments of the completed system. It was left to the explanatory decisions of the Prophet and the juristic reasoning of the early authorities to supply the details of the relative priorities among the different types of collaterals, and, in particular, to define the precise circumstances in which brothers and sisters would be entitled legal heirs.
Succession in the Muslim family, supra note 110, at 65–66.
332 See Verma, supra note 15, at 433; Makdisi, supra note 61, at 274, tbl. 1. The siblings take nothing if any of the named relatives survive. See id.
333 See Verma, supra note 15, at 432.
334 See Succession in the Muslim family, supra note 110, at 68.
335 See Makdisi, supra note 61, at 276, tbl. 1.
336 Succession in the Muslim family, supra note 110, at 55.
337 See Verma, supra note 15, at 472.
338 See id.
339 See id. The one-sixth share is derived from the collective two-thirds share that would be allotted had there been more than one daughter. If the decedent is survived by one daughter, she takes one-half of the estate and the agnatic granddaughter takes the remaining portion of the two-thirds collective share (four-sixths minus the daughter’s three-sixths equals one-sixth). See Succession in the Muslim family, supra note 110, at 55.
340 See Verma, supra note 15, at 472.
341 See generally Rosen-Zvi & Maoz, supra note 270.
342 See id. at 288–89.
343 See id. at 324. The spouse’s portion of the deceased spouse’s estate varies depending upon what other heirs survive. See id. at 324–25.
344 See id. at 302–03. For spouses who were married before January 1, 1974, the presumption resulted in a 50/50 split of the marital assets. The surviving spouse’s share belonged to her absolutely and was not subject to the debts of the estate of the deceased spouse. For spouses married after 1973, a “balancing of resources” approach is taken. This results in the surviving spouse’s share of the communal property being viewed as a debt of the estate. See Rosen-Zvi & Maoz, supra note 270, at 304.
345 See id. at 308–16.
346 See Introduction to the Law of Israel 107 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995). However, these amounts are deducted from any other amount to which the spouse is entitled under the succession laws. See id.
347 See Rosen-Zvi & Maoz, supra note 270, at 323.
348 See Grunfeld, supra note 23, at 100.
349 See id. at 6.
350 See id. at 108–11.
351 Id. at 101. The deed of gift that he suggests divides the donor’s property equally among his sons and daughters and provides his wife with an income interest for her life. See id. at 109. The gift remains revocable “until one hour before my demise.” Grunfeld, supra note 23, at 109.
352 See Goodwin, supra note 116, at 7–8, 46; Howland, supra note 62, at 306–07; Telesetsky, supra note 135, at 295.
353 One theory is that these extremists are “emphasiz[ing] Koranic passages that reinforce Islam’s patriarchal aspects, while deemphasizing its clear injunctions giving women equality, justice, and education.” Goodwin, supra note 116, at 9.
354 See Howland, supra note 62, at 305–17. An example of this political/religious subordination occurred in Afghanistan in the mid-1990s, when the Taliban, a military group whose members were trained in Islamic fundamentalists schools, achieved a position of dominance. See Telesetsky, supra note 135, at 293–97. The Taliban “have banned women from the work force and education system, and have mandated certain dress and behavior codes.” Id. at 296.
355 See Webber, supra note 41, at 1068.
356 See Telesetsky, supra note 135, at 296.
357 See Webber, supra note 41, at 1069–70.
358 See id. at 1071–72.
359 See id. at 1074–76.