SOAS Research Online

Abstract

The underlying premise of the research is to argue that the Shariʿa, as a source for the development of law, is flexible, adaptable, and malleable, even for those aspects of the Shariʿa that have historically been seen to be sacrosanct. This research will question the perceived current opinion amongst some members of the Muslim community that whether the law is based on the Qur’an, the Sunnah, or the opinion of jurists, it is fixed for eternity, and that change or Ijtihad is not allowed. Once the principles of Shari'a and its interpretation into law is explained, an analysis will be given of the Shariʿa laws of inheritance, highlighting the fact that no specific law more clearly represents the position of women in most Muslim majority countries than the double share of inheritance given to males when sharing an estate with a female in the same class. Current laws of inheritance are explained to be based on clear Qur’anic injunctions that stipulate the distribution to be in a ratio of two to one in favour of a male. The interpretations of that injunction over the past 14 centuries have reinforced the double share for males, as has codified law in almost every Muslim majority country. It will be argued that Shariʿa, as a process of law, has shown a historically inbuilt mechanism that has allowed communities to interrogate the suitability of any law based on changes in circumstances of a society at a given time. Examples of temporarily, or permanently, suspending the application of a clear Qur’anic injunction will be shown to be prevalent throughout Islamic history and it will be shown that many Muslim majority countries selectively choose those laws that need to be temporarily suspended, regardless of the background or historical interpretation of the Shariʿa. Laws on slavery, adultery, consumption of alcohol, gestation, or paternity are either interpreted liberally, or have been officially suspended and replaced by a more socially, and globally relatively acceptable set of state laws. The contention of this thesis is that the UAE, based on its current social, political, and economic circumstances is ideally suited to consider a suspension of the current laws of inheritance. The research shows that the phenomenal pace of social change in general, and female participation in the fabric of UAE society specifically, have allowed the community to recognize the need to change, as long as that change does not conflict with what they see as being the laws of the Shariʿa. This thesis argues that the only way gender equality can be achieved in inheritance law in the UAE would have to be based on a Shari’a compatible approach, using language, and logic that appeals to the religious sensibilities and outlook of the community at large, and the religious class specifically. The processes that could, and should be used, include principles that have long been embedded in jurisprudential discourse since the very beginning of the Islamic legislative process such as Maqāṣid al-Sharīʿa, Maṣlaḥah, and Ijmā῾'. Other tools that are available to be used include procedural rules that are also embedded in Shari’a methodology such as the principle of Ḥiyal which have been used in other Muslim majority jurisdictions. These processes are explained to a cross section of Emirati society, and their collective responses are presented as an example of the potential for the acceptability of suspending Qurʾanic law amongst a conservative Muslim community depending on the approach that is taken when the social circumstances warrant a review of the law.