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Appendix 3. Inheritance Law: From the Ancient Near East to Early Islamic Times Inheritance in the Ancient Near East Long before the rise of Islam, the inhabitants of the Near East had developed and refined rules and mechanisms for the intergenerational transmission of property. The general structure of Near Eastern inheritance systems displays remarkable uniformity over time and space. All Near Eastern inheritance systems make a clear distinction between rules of intestacy, on the one hand, and testate succession, on the other. In this respect, as we shall see, Islam is anomalous.1 Intestate Succession In ancient Near Eastern inheritance systems, a man’s primary heirs were his natural sons born of a legitimate marriage. If a man died childless, his estate passed to his brothers or nephews. In principal, husbands and wives did not inherit from one another, and the devolution of property to widows was regulated by the dower system. If a widow were indigent, she might be granted a share of her husband’s estate. To facilitate the division of an estate, property was divided into individual parcels, and lots were cast to determine the share of each heir. A first-born son frequently inherited a double share.2 Testate Succession Generally speaking, a last will and testament was used only in exceptional cases. If a man produced no sons, he could formulate a will in which he appointed as his heir someone who would not qualify according to the rules of intestacy, e.g., a wife, a daughter, the natural son of a concubine, or an adopted son. By means of a last will and testament, a testator might assign a specific parcel of property to an individual heir, transfer a first-born son’s double share upon intestacy to another son, or award a share of the estate to a daughter. A last will and testament also could be used to disinherit a natural son, for cause. The legal instrument was revocable at any time before the testator entered his final death sickness.3 252 Appendix 3 Arabian and Proto-Islamic Inheritance Law Islamic sources indicate that the inheritance system practiced by the early Muslim community underwent significant changes during the course of the first century a.h. Let us examine these changes. Mecca There is little hard evidence on inheritance practices in Mecca. Presumably, the Meccans followed an Arabian version of Near Eastern provincial law. If so, they would have been familiar with the distinction between intestacy and testate succession. In the absence of a last will and testament, property would have been divided among heirs who were determined on the basis of blood relationship to the deceased, that is, sons, brothers, nephews, and cousins. The emergence of Muhămmad as the leader of a small community would have made the subject of inheritance a matter of general concern, especially when blood ties conflicted with religious ties. What happened when a Muslim died and his closest blood relative was a pagan or polytheist? To strengthen communal ties and to prevent valuable economic resources from passing to non-Muslims, Muhămmad is said to have created pacts of brotherhood (muākhāt) between pairs of Muslims who were not close relatives.4 Medina: Stage 1 The tension between blood ties and religious ties was exacerbated by the hijra or migration to Medina. At first, many if not most of the muhājirs or emigrants would have had close blood relatives in Mecca who remained pagans or polytheists, and many if not most of the ansă¯r or Helpers in Medina would have had close relatives in that city who had not yet accepted Islam. What happened if a muhājir died in Medina and his or her closest blood relative was a Meccan pagan? What happened if a Medinese Helper died and his or her closest blood relative was a Christian or Jew? Islamic sources indicate that the Prophet suspended Medinese inheritance law following his arrival in the city, presumably in an effort to prevent the transfer of wealth and property from Muslims to non-Muslims and to keep economic resources within the Muslim community. New inheritance rules were introduced, based upon the principles of common faith, migration, and, again, pacts of brotherhood. Prior to the Battle of Badr, Muhămmad is said to have created brotherhood pacts between thirteen pairs of Meccan emigrants and Medinese Helpers. These agreements were based upon the principle of “right and sharing” (alāal-hăqq wa’l...

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