Abstract

Islamic inheritance law excludes orphaned grandchildren from inheriting a share of their grandparent's estate in the event of surviving uncles and aunts under the rule that the nearer in degree excludes the more remote. For centuries, this prohibition has prevented orphaned grandchildren from inheriting a share of their grandparent's estate. Mediaeval Islamic juridical treatises claimed that inheritance law's provisions are the final dictate of God and their authority cannot be questioned. States have tried to resolve the conflict between the provisions of Islamic law and social needs by adopting various devices of reform such as ijtihad, taqlid, takhayyur, and talfiq. In 1946, Egypt through the device of takhayyur established the principle of obligatory bequest [wasiyyah wagiba] in the Bequest Law, which enabled orphaned grandchildren the right to receive up to one-third of their grandparent's estate. This invited considerable attention of other Islamic states. In spite of some differences in detail, various Islamic countries agreed, in principle, with the position of Egypt. Syria in 1953, Tunisia in 1956, and Iraq in 1959 issued inheritance laws allotting a share of the grandparent's estate to orphaned grandchildren. In 1961, Pakistan took a proactive stance by stipulating a provision that is distinct from Muslim majority states by adopting the device of ijtihad to establish the principle of full-representation for orphaned grandchildren. This paper assesses the two reform attempts by Egypt and Pakistan to develop orphaned grandchildren's inheritance rights during the twentieth century. In so doing, it uncovers that neo-ijtihad is the method of reform adopted by the Egyptian legislator to establish the obligatory bequest. It examines the wasiyyah under the Islamic legal system and details the debate between jurists on the appropriate method for Islamic law reform. Finally, it discusses means to enhance orphaned grandchildren's inheritance rights.

School

School of Global Affairs and Public Policy

Degree Name

MA in International and Comparative Law

First Advisor

Parolin, Gianluca P.

Committee Member 1

Badawi, Nesrine

Committee Member 2

Sayed, Hani

Document Type

Thesis

Rights

The American University in Cairo grants authors of theses and dissertations a maximum embargo period of two years from the date of submission, upon request. After the embargo elapses, these documents are made available publicly. If you are the author of this thesis or dissertation, and would like to request an exceptional extension of the embargo period, please write to thesisadmin@aucegypt.edu

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