The laws of the Korân concerning inheritances are also in several respects
conformable to those of the Jews, though principally designed to abolish
certain practices of the pagan Arabs, who used to treat widows and orphan
children with great injustice, frequently denying them any share in the
inheritance of their fathers or their husbands, on pretence that the same
ought to be distributed among those only who were able to bear arms, and
disposing of the widows, even against their consent, as part of their
husbands' possessions.5 To prevent such injuries for the future, Mohammed
ordered that women should be respected, and orphans have no wrong done them;
and in particular that women should not be taken against their wills, as by
right of inheritance, but should themselves be entitled to a distributive part
of what their parents, husbands, and near relations should leave behind them,
in a certain proportion.6
The general rule to be observed in the distribution of the deceased's
estate is, that a male shall have twice as much as a female:1 but to this rule
there are some few exceptions; a man's parents, for example, and also his
brothers and sisters, where they are entitled not to the whole, but a small
part of the inheritance, being to have equal shares with one another in the
distribution thereof, without making any difference on account of sex.2 The
particular proportions, in several cases, distinctly and sufficiently declare
the intention of Mohammed; whose decisions expressed in the Korân3 seem to be
pretty equitable, preferring a man's children first, and then his nearest
relations.
If a man dispose of any part of his estate by will, two witnesses, at the
least, are required to render the same valid; and such witnesses ought to be
of his own tribe, and of the Mohammedan religion, if such can be had.4 Though
there be no express law to the contrary, yet the Mohammedan doctors reckon it
very wrong for a man to give away any part of his substance from his family,
unless it be in legacies for pious uses; and even in that case a man ought not
to give all he has in charity, but only a reasonable part in proportion to his
substance. On the other hand, though a man make no will, and bequeath nothing
for charitable uses, yet the heirs are directed, on the distribution of the
estate, if the value will permit, to bestow something on the poor, especially
such as are of kin to the deceased, and to the orphans.5
The first law, however, laid down by Mohammed touching inheritances, was
not very equitable; for he declared that those who had fled with him from
Mecca, and those who had received and assisted him at Medina, should be deemed
the nearest of kin, and consequently heirs to one another, preferably to and
in exclusion of their relations by blood; nay, though a man were a true
believer, yet if he had not fled his country for the sake of religion and
joined the prophet, he was to be looked on as a stranger:6 but this law
Public-domain text, read in full here on John Shaqi.
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