The American Journal of Islamic Social Sciences Review Article Vol. 6, No. 2, 1989 329 Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance by David S. Powers; Berkeley: University of California Press, 1986, 263 pp. (Appendices, Glossaq Bibliography, I n d a and Tables). David S. Powers’ book, originally a doctoral dissertation submitted to Princeton University, is a welcome addition to the already growing corpus of studies revising Joseph Schacht’s thesis that Islamic law did not exist dur- ing the lifetime of the Prophet. This is, however, not the central theme of the book. Powers contends that the Islamic law of inheritance is not identical to the system of inheritance revealed to Prophet Muhammad and that the Muslim community is not in possession of the original reading and understan- ding of several Qur’anic verses and Prophetic hadith. The thesis presented in this book can be summarized as follows: Islamic law began to develop with Qur‘anic legislation which was more clear and systematic on the subject of inheritance. In pre-Islamic Arabia the intergenemtional transmission of property was by seniority rather than by direct descent. The Qur’an introduced a new system of inheritance which reflected a transition from tribalism to individualism, with more emphasis on the rights of women to property. The author sees two systems of the law of inheritance in Islam: 1) 2) The proto-Islamic law of inheritance which existed only during Islamic law of inheritance, which exists as ‘ilm al-farii‘id. the lifetime of the Prophet; and, Powers contends that the proto-Islamic system was mainly testatory and the property was distributed according to fixed shares only in the absence of a will. Husband and wife, not being blood relatives, inherited as testatory heirs. The author divides his dissertation into two parts. In the first part he deals with the proto-Islamic, in the second with the Islamic system of inheritance. The first part proceeds by looking at the practice of bequest and testation in Makkah and Madinah in early Islam, giving special attention to the inheritance between husbands and wives, and the Qur’anic law of testation and intestacy. The second part proceeds by looking at socio-economic developments in the early period and contends that people in power manipulated the Qur‘anic 330 The American Journal of Islamic Social Sciences Vol. 6, No. 2, 1989 legislation and altered their understanding by offering a different reading and by developing the doctines of abrogation of the bequest verses and of asbiib al-nuziil of verses relating inheritance. Reading this book one is struck by the strongly worded conclusions that the author draws from inconclusive evidence. His conclusions are admitted- ly thought provoking but his methodology, on the whole, is disappointing. Very often the author seems to accept evidence without critically examining the sources. Sometimes he goes on to draw conclusions from probable “clues” in the absence of reliable sources. We shall refer to only a k w instances in the following lines. Regarding the tribal customary law of pre-Islamic Arabia for instance, the author complains that there are few, if any, reliable sources that might shed light on this subject. To fill this gap, he develops a method which he describes as ”teasing” certain elements of customary law out of historical sourceSn (p. 210). With this method he finds that “the transgenerational transmis- sion of property among the tribesmen of vijiiz is more likely to have been governed by the principle of seniority than by that of direct descent” @. 210). The conclusion at this point is stated very carefully with several qualifica- tions and the author terms it a “clue”, but still he builds on this “clue” the whole edifice of his thesis. It becomes an important “key” for his understan- ding of the Qur’anic legislation, for the relationship between tribal law and this legislation, and for his distinction between proto-Islamic and Islamic law of inheritance. He finds this clue in R. Brunschvig’s remarks about &&ah and wilii.’ Fbwers refers to Coulson, Margais, G. H. Bousquet, Robertson Smith and other scholars. He argues that these scholars were wrong in proposing the theory that “The hubs of Islamic Law are a carry over from the Nbal customary law of pre-Islamic Arabia” (p. 88). He endorses R. Brunschvig’s theory for a contrary view. Brunschvig argued on the basis of “historical” (Strabo describing practice in Yemen), linguistic (Vbah sharing consonantal structure with &&uh and ethnographic evidence (Chelhod‘s reference to Bedouine practice) that it was the principle of seniority, not the principle of direct descent that governed the transmission of property in pre-Islamic Arabia (p. 91). The rule of seniority to which Brunschvig refers is connected with wiliiyczh; which can still be found operative in thejqh books as far as guardian- ship is concerned. Brunschvig’s suggestion that it might also apply to the distribution of property should not be stretched too far. Recently Patricia Crone (Roman, prainciul and Islamic Law, Cambridge, 1987) has analyzed the term and the institution of wihyuh in detail and differs with Brunschvig’s views on this point. Furthermore, the picture that the author draws of the development of the Muhammad Khalid Mas’ud Studies in Qur‘an and Hadith 331 law of inheritance in Arabia of three clear phases of pre-Islamic, probIslamic and Islamic is too simple to be historically substantiated. For a very signifi- cant period (622-623) the inheritance of property was restricted by the prin- ciples of Mu‘iWlit and Hijmh. The Qur’anic verse 8:?2 refers to this relation- ship. The M t h , tay3Sr andfiqh literature explains that migrants from Mak- kah and the p p l e in Madinah inherited from each other on the basis of M u W and even the Muslims having blood and tribal ailhities did not quahfy as heirs if they had not migrated or if they were not brothers under mu*Wt&. This practice continued until the revelaton d t h e Verse 33:6 which gave priority to k l i l ar-. Had the author consulted these sources for “historical elements” he could have determined the chronology of these verses. He talks about abrogation and asbiib al-nuziil stories and dismisses them as attempts to suppress the original meanings of the verses, but one fails to understand why he does not attempt to fix dates of these verses. The examples of bequests and wills to which Powers rekrs on pp. 129, ff. are not sufficiently conclusive because the author has not placed the verses of these illustrations chronologically. Powers rekrs to nine instances @p. l28, ff.) during the period of revelation to prove that it was common to leave a last will and testament and that the science of the shares was not practiced. Out of these instances 1, 3 and 7 have not been dated, 2 and 4 belong to the year 622,5 to 624 and the rest fall between 625 and 631. As Ibn Sa’d noted, the verses relating to termination of inheritance on the basis of mutzkhfit were revealed in 624, and hence the instances of the earlier periods could not be judged on the basis of these verses. It is nevertheless significant to note that even the twu instances (2 and 4) from 622 do not differ from the classical tradition, 2 speaks of the bequest of 113 of the property and 4 refers to guar- dianship. 6 , 7 and 8 refer to the cases of the appointment of the executor of the will and that of passing of inheritance to the deceased‘s son. This is also not contrary to the classical legal position, the son inherits the whole estate in the absence of dhviiZfi*. These instances, therehre, do not sufficiently establish his assumption. The ninth instance, referring to Mu’idh b. Jabal, merits an additional comment. The author says that Mu’& prepared a last will and testament in which he designated as heir a sister and daughter, who were each to receive half of his estate. @. 131). We call it interesting because Mu’idh b. Jabal died childless. Some of the sources even say that he never had a child. Others say that his son Abd a l - m died before Mu’idh but he was still alive when Mu’idh allegedly wrote his will. Secondly the author refers to two sources for this evidence: Abii Daxd‘s Sunan and Ibn Hishih’s Smh. Not all edi- tions of Sunan include this story. One of the editions which includes it, glosses it as Mu’idh’s judgement in a case, not as his own will. Bukhiiriis S?uz&h also 332 The American Journal of Islamic Social Sciencs Vol. 6, No. 2, 1989 mentions it as Mu'idh's judgement. The second source, Ibn Hishiim, does not refix to this will at all. Of course the word aw$i is mentioned on the rekrred page, but it alludes to the Prophet Mu$arnmad's instructions to Mu'iidh. Thirdly, Mu'idh's judgement does not violate the rules of the science of the shares. In the absence of other heirs a daughter and sister each receives 1/2 of the estate according to Q. 4:ll, and 76. Fourthly, as Ibn Sa'd, mentions, this story occurs in 9 H. when Mu'idh was sent penniless to Yemen. There was nothing to prompt him to write his last will. The mainstay of Powers' thesis is his suggested different reading of the Qur'anic verse 4:l2, particularly a new meaning of the Qur'anic term Kaliilah, that he has proposed. He claims that the present reading of the verse differs from the original- ly revealed reading and that this alteration was manipulated by politically in- terested people soon after the Prophet M u m a d ' s death. The author gives no substantial evidence for this manipulation. His contention is that the pre- sent reading leads to some syntactical difficulties which his suggested reading removes. Secondly, his suggested reading conforms with his view of the development of the law of inheritiance in Islam which places stress on in- dividualism and the rights of women. The present reading of the verse is as follows: Translation (Pickthall) And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother's side) then to each of them twin (the brother and sister) the sixth, and if they be more than two, then they shall be shares in the third, after any legacy that may have been bequeath- ed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A Commandment from Allah. Allah is Knower, Indulgent. Siirah AZ Nisii' (4:I2) Studies in Qur'an and Haditb 333 The author suggests firithu, in place of fimthu, immbtun, and yi&i instead of Mii. With these alterations he translates the verse as follows: "If a man designates a daughter-in-law or wife as heir, and he has a brother or sister, each one of them is entitled to one sixth. If after any legacy he bequeaths or debt, without injury. A Command- ment from God. God is knowing, for-bearing". @. 43). they are more than that, they are partners with respecttoone-w, The author notes cogent objections raised to this reading by his colleagues from the view point of Arabic language @. 42 n. 37). Language apart, con- textually also the suggested reading only adds to the confusion. Several ques- tions arise. If there is no restriction on bequest and the whole bulk of one's property can be bequeathed in favour of one person as the author maintains throughout his book, how is the designation of wife or daughter-in-law, or the division of property into l/6 or l/3 among the sisters and brothers possible. secondly, daughter-in-law and wife are not mutually exclusive. Thirdly *immiztzm/m" does not mean "WifS"' Fburthly, in this readmg there is no mention of children or parents; would they have no share in property while brothers and sisters of the deceased would? Fifthly if there is no restriction on bequest, how is the phrase "without injury" to be explained. With this reading it is possible that one designates his daughter-in-law instead of his wife. Sixthly, with this mdhg it is not clearw hethera wife can designateher husbarmdorherdaughtm- in-law. The traditional reading at least covers both cases of husband and wife. This suggested readjng is also unnecessary, if we look at the sequence of vem. The verse46 declares a fixed share for both men and ulomen in the p w r t y left by their and relatives. Ver~e 4Al proceeds by a- PlainingdKsefixedSharesinthe h-&: ChiMren (shares in6lmrent C h i k h t X l a f t h e * , a r & a l o n g W i t h ~ a n d ~ a f t h e ~ ~ ~ 1 2 d K n p o c e e d s m ~ e J r p l a i n t h e ~ a f ~ s p o n s e . F ~ itdeaaswitb sitosttions W b e r e s p c l o s e sEirvksdq* s p o u % e ' s c ~ , ~ w h e r e k o r s h e ~ a l a n e - I n ~ o r d e r a h e n e x t ~ ~ b e v v b e r e t h e ~ b g g n o ~ o f * ~ t h e ~ a f ~ IleadirJg a n d n k w n i n g s e e m n m p . e ~ . T b e doesnoti3intoiiIe amradifihntmsmingoftbe wwdbbeeo situations e.g., if sons and daughters both exist, if more than two daugkm, danghteralone inherits); p t a m ~ ( i f b 0 t h exist, if they exist dong with the ed). Having dealt with the shuts &children and parents in vsaious sim- =P== -wss-K-& 334 The American Journal of Islamic Social Sciencs Vol. 6, No. 2, 1989 understood to refer to the one who dies leaving no children and parents behind. Powers argues that it should be rendered as “daughter-in-law”. His argument is threefold. Firstly he traces the origin of the word to Hebrew, Syriac and other Semitic languages where, according to him, it means “daughter-in-law” or “sister-in-law”. Secondly, he argues that this meaning fits better with the Qur’anic legislative policy which stresses the rights of women. Thirdly, he maintains that the meanings as suggested by him were the original readings and were replaced by the first generation of Muslims for political reasons. To substantiate his claim the author refers to the uncertainty and the contmemy over the meaning of the term that prevailed during the early period of Islamic We are not competent to comment on the first argument, but we may invite the author’s attention to verse 16:76 where another word KaZh (pro- bably the same root as fib&?) has been used in the meaning of “burden”, (good for nothing). Regankg his other evidence, it must be admitted that Powers knows how to manipulate it in his k o u r . For instance, he repeatedly refers to 27 statements in pbm- about the definition of Kaliilah. In hct they are not 27 different defini- tions of the word. None of them questions the traditional meaning of the word, they differ only on the point whether the term K a b h h in the verse refers to the deceased or the surviving. Powers says ‘According to fourteen Shawiihid, the word signifies one who leaves neither parent nor child, so that it refers to the deceased. According to twelve shawiihid, the word signifies all those except the parent and child, so that it refers to the heirs. Finally, one statement indicates that both definitions are possible”. @. 3) On p. 30 he nevertheless refers to this explanation as follows: history. “Reference has already been made to the twenty seven shawiihid containing one or another definition of the word.” Later the author admits that “these anecdotes make little or no sense when viewed in the context of the Islamic law of inheritance, for what could have been so controversial or mysterious about a word that means either a man who dies leaving neither parent nor child or all those except the parent and child” @. 108). Still he concludes that these anecdotes were put into circula- tion by those who objected to the traditional interpretation and “these people did manage, however, to circulate a series of carefully coded anecdotes that allude, between the lines, to the original significance of Q. 4:l2” @. 108). The author suggests that these anecdotes were actually circulated to limit the scope of the meaning of the word to either of these two senses in order to eliminate the original meaning of “daughter-in-lm” which he believes prevail- ed in pre-Islamic Arabia. To substantiate his claim he refers to two early Arabic Muhammad Khalid Mas‘ud Studies in Qur‘an and Hadith 335 texts. Along with them he mentions the story of Qays b. Dh& which the author quotes from Kit& uZ-Aghiini, a text of 4th century Hijrah, with the following introduction: “I have recently come across a text that uses the word Kaliilah in a manner that can only signify a “daughter-in-law”. @. 41 n 36.). The story tells us that Qays, a poet of the Ummayad period, married Lubni against the wishes of his parents. Lubnft was barren. Qays’s mother complained to her husband that Qays was childless and that her husband’s property would pass to a KaZiilah. She insisted that Qays should marry another woman so that he might have children. The author contends that in this context Kaliilah refers only to Lubnii, Dharilfs daughter-in-law. It cannot refer to Qays. This argument illustrates the author’s obsession with his own opinion. This is why he is forced to change the text and context in favour of his own meanings. He adds a qualifying sentence ‘(if Qays dies)”, otherwise his meaning would not fit into the context. He is so taken up by his own “discovery” that he could not accept the unaltered text where Qays’s mother is complaining that Dharilfs property would pass to Qays who had no children. She pleaded that Qays should marry another woman in order that he might have children and might not die KaZiiZuh, having no parents or children. Even if Powers’ alteration and suggested meaning are accepted, his conclusion that DharQ’s property would pass to Lubni is not tenable. The story belongs to the later period of the first century and the text belongs to the 4th century, when ac- cording to the author the science of the shares prevailed and when according to Islamic law the maximum share that Lubni was entitled to would be 114 and that too only if Qays had not died during the lifetime of his father and if Lubnft inherited from Qays. Had Qays died while his father lived, Lubnft could not inherit from Dhar@ at all. There is no doubt that David S. Powers has explored in this book a very complex phenomenon which is entangled with historical and linguistic con- troversies, and that he has amassed a vast amount of material, but his search for evidence only to prove his hypothesis has prevented him from critically examining his own arguments, sources and possible biases. It is not in vain that he describes his methodology in the following words: “After completing the dissertation, I set about looking for evidence in the historical sources that might support my hypothesis. . . . . .@. xii) Muhammad W i d Mas’ud Islamic Research Institute Islamabad