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 of Global Affairs and Public Policy
MA in International and Comparative Law
Parolin, Gianluca P.
Committee Member 1
Committee Member 2
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Hamouda, S. H.
(2021).Islamic inheritance law reform: the problem of orphaned grandchildren's inheritance rights [Thesis, the American University in Cairo]. AUC Knowledge Fountain.
Hamouda, Salah Hesham. Islamic inheritance law reform: the problem of orphaned grandchildren's inheritance rights. 2021. American University in Cairo, Thesis. AUC Knowledge Fountain.