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1. ARTICLE: The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int’l & Comp. L. Rev.
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adam cooper
 ARTICLE: The Inheritance Rights of Women Under Jewish and Islamic Law
Spring, 2000

Reporter: 23 B.C. Int’l & Comp. L. Rev. 135

Length: 24117 words

Author: Mary F. Radford*

LexisNexis Summary

… In the Western tradition, women generally, and married women in particular, had little or no
place in the order of intestate succession. Until the end of the sixteenth century, women were
basically denied the right to inherit property. … Also, the survival of an agnatic descendant or
ancestor has no affect on the prescribed share of a named taker. … Thus, if a decedent dies survived
by both parents and not by issue, the father inherits the decedent’s entire estate. … An agnatic
granddaughter may take a share of the decedent’s estate either as a named taker or as a residuary
taker. … The agnatic granddaughter will take as a residuary taker in two circumstances. …

Highlight

Abstract:The inheritance rights of women in the Anglo-American system have evolved from a
system whose primary purpose was the support of women to one in which women enjoy the same
rights to inherit and own property as their male counterparts. The laws of Judaism and Islam
contain elements of these two Anglo-American approaches, with a focus on support under Jewish
law and on ownership (although not equal ownership) under Islamic law. In this article
Professor Radford gives a brief overview of the legal systems of Judaism and Islam and of the
place of women in these systems. She then provides a detailed description of the ways in which the
laws of Judaism and Islam govern the rights of wives, mothers, daughters, and other female
relatives to inherit property.

Text

[*135] In the Western tradition, women generally, and married women in particular, 1 had little
or no place in the order of intestate succession. 2 Until the end of the sixteenth century, women
*
Professor of Law, Georgia State University College of Law; J.D. (1981) Emory School of Law; B.A. (1974), Newcomb
College of Tulane University.
1
Alina Semo Kofsky, A Comparative Analysis of Women’s Property Rights in Jewish Law and Anglo-American Law, 6 J.
LAW & REL. 317, 342 (1988). Marriage deprived a woman of her legal identity and brought her property under the control of
her husband. See generally KATHERINE T. BARTLETT & ANGELA P. HARRIS, GENDER AND LAW: THEORY, DOCTRINE,
& COMMENTARY 9-12 (2d ed. 1988). As early as the 15th century, a widow was entitled to ″dower″ when the husband died.
However, dower consisted only of a life estate in one-third of the husband’s property. Kofsky, supra, at 339. The first Married
Women’s Property Acts were not enacted in the United States until the early 1800s. See id. at 342. For a summary of the enactment
of these state laws and how they affected married women’s legal status, see JOAN HOFF, LAW, GENDER, AND INJUSTICE:
A LEGAL HISTORY OF U.S. WOMEN app. One, 377-82 (1991).
2
The laws of intestate succession, which are sometimes referred to as the ″laws of descent and distribution,″ are basically
used to determine those persons to whom a decedent’s property will be distributed if the decedent dies without a valid will. JESSE
DUKEMINIER & STANLEY JOHANSON, WILLS, TRUSTS, AND ESTATES 67-68 (5th ed. 1995); see, e.g., GA. CODE

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were basically denied the right to inherit property. 3 Modern times have seen a dramatic [*136]
reversal of this trend. Not only can women now inherit property equally with their male
counterparts, but married women (and spouses generally) are favored in their ability to share the
property formerly owned by the deceased spouse or by the couple during their marriage.
This reversal is illustrated by the current structure of inheritance laws in the United States. If a
deceased spouse dies without a will, state intestacy laws guarantee that a portion of the estate will
pass to the surviving spouse. 4 Community property jurisdictions give both spouses equal
ownership of the property that is acquired by the married couple during the course of the marriage
5
and, at death, the surviving spouse retains her one-half ownership in the property of the
marriage. 6 In most separate property jurisdictions, the surviving spouse is allowed to elect to
take a specified portion of the deceased spouse’s estate in lieu of taking under the decedent’s will.
7
Throughout the United States, the surviving spouse is allowed to take from the estate amounts
needed for his or her maintenance for a period following the death of the first spouse. 8 Thus, these
laws guarantee a woman both the ability to inherit property and, in some circumstances,
[*137] the right to be supported after the death of a male upon whom she may have been
dependent.

The advancements in women’s inheritance rights in modern Western law were presaged centuries
earlier by the laws of Judaism and Islam. Long before women were given the right to inherit
property in Western jurisdictions, the laws of these two religions had established a limited form
of inheritance and support rights for the surviving wife and female relatives of a decedent. 9 This
article describes and compares the inheritance rights of women under the two religions. Part I
is an overview of the sources of law for the two religions. Part II briefly describes the place women
ANN. § 53-2-1(b)(1) (1997) (″When a decedent dies without a will, the following rules shall determine such decedent’s heirs . .
. .″).
3
See Kofsky, supra note 1, at 338-39. Perhaps the best-known example of the exclusion of women from inheritance was the
rule of primogeniture, which caused a decedent’s real property to pass to his first-born son. This rule became prominent in England
after the Norman Conquest. THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 13 (2d ed. 1953).
4
This guaranteed amount is described in some state laws as a fraction of the estate. See, e.g., GA. CODE ANN. § 53-2-1(b)(1)
(1997) (one-third of the estate); KY. REV. STAT. ANN. § 392.020 (1995) (one-half of the estate); S.C. CODE ANN. § 62-2-102
(1987) (one-half of the estate). Other states guarantee the spouse a minimum value of the estate plus a fraction of the remaining
balance. See, e.g., ALA. CODE § 43-8-41 (1991); FLA. STAT. ANN. § 732.102 (1995).
5
See DUKEMINIER & JOHANSON, supra note 2, at 473-74. ″Community property is based on the idea that husband and
wife are a marital partnership, that they decide together how to use the time of each so as to maximize their income, and that they
should share their earnings equally.″ Id. at 476.
6
Id. at 474. However, it is only within the last half of this century that this right has been equalized between husbands and
wives. Prior to that time, some of the state community property laws provided that a husband who survived his wife would end
up owning all of the community property after her death, while a wife who survived her husband would retain only her one-half
interest. See HOFF, supra note 1, at 286-87.
7
DUKEMINIER & JOHANSON, supra note 2, at 483-84. ″The underlying policy (at least in a long marriage) is that the
surviving spouse contributed to the decedent’s acquisition of wealth and deserves to have a portion of it.″ Id. at 484. For a description
of elective share statutes, which generally reflect the provisions of the Uniform Probate Code, see Mary F. Radford & F. Skip
Sugarman, Georgia’s New Probate Code, 13 GA. ST. U. L. REV. 605, 652-56 (1997).
8
See DUKEMINIER & JOHANSON, supra note 2, at 480-81. For a description of the forms these support statutes take, see
Radford & Sugarman, supra note 7, at 656-58.
9
A comparison of the property rights afforded Jewish women in Halachah (Jewish law) and Anglo-American women at
common law reveals that Jewish women had a greater ability to own and dispose of property free from her husband’s influence,
and was able to do so at an earlier time in history than her Anglo-American counterpart.″ Kofsky, supra note 1, at 346. See also the
description of women’s intestate shares in Islamic law, infra at text accompanying notes 204-05.

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hold in Judaism and Islam. Part III summarizes the concept of marriage in the two religions and
the nature of a wife’s rights to hold property within the marriage, as these rules reflect the
philosophy behind women’s general rights to inherit property. Part IV outlines the basic structure
of inheritance law in both religions and then describes in detail the inheritance rights of
surviving wives and other female relatives of the decedent. Part V concludes with a brief
discussion of the way in which the inheritance rights of women that were established by the
laws of these two religions are played out in modern societies whose laws and customs are based
on the legal precepts of Judaism and Islam.

I. SOURCES OF LAW

At the outset, it is necessary to explain the terms ″Jewish″ and ″Islamic″ law. The Jewish law
described in this article is not to be confused with the law of the State of Israel. In 1965, Israel
passed a comprehensive Succession Law that embodies theories from a variety of Western countries
and that does not concur in every respect with traditional Jewish law. 10 Nor is Islamic law to
be confused with the law that is followed today in many Islamic countries. These countries in many
cases have adopted, either officially or unofficially, legal systems that vary in substantial ways
from traditional Islamic law. 11 Rather, the terms ″Jewish law″ and ″Islamic law″ refer to the body
of law in each [*138] religion that stems from divinely revealed sources and the interpretation
and expansion of these revelations by scholars, community members, and local custom.

The structure of the law of Judaism and of Islam is similar in that the basic written source of
each is believed to have been revealed to mankind by God. 12 The divine revelations in both of
these religions were made exclusively to one man 13 --Moses, in the case of Jewish law, 14 and
Mohammed, the Prophet, 15 in the case of Islamic law. In each religion, the precepts of the
divine source have been and continue to be interpreted and expanded over time by the combination
of community practice and scholarly debate. 16 In addition, the law of both religions was

10
Women’s rights under this law are discussed in Part V, infra.
11
These laws are discussed in Part V, infra.
12
It is a basic tenet of the Jewish faith that the source of Jewish law . . . is divine revelation . . . .″ THE PRINCIPLES OF
JEWISH LAW 18 (Menachem Elon ed., 1975) [hereinafter PRINCIPLES OF JEWISH LAW]. Professor Elon describes the Bible
as the ″source of authority of the whole of the Jewish legal system.″ Id. at 11. ″The ultimate source of Islamic law is God
alone . . . .″ Zainab Chaudhry, The Myth of Misogyny: A Reanalysis of Women’s Inheritance in Islamic Law, 61 ALB. L. REV.
511, 519 (1997).
13
Unlike Christianity, however, the individuals to whom the law of Judaism and Islam was revealed were not themselves
considered divine.
14
See Rabbi Rodney J. Mariner, Introduction, to THE TORAH 9 (Henry Holt and Company, Inc. 1996). ″To speak of the
origins of the Torah is, for Orthodox Jews, to speak of the moment on Sinai when Moses received not only the two tablets of
stone, but the written Torah dictated to him by the God of the Exodus, and all the oral interpretations that were to be the substance
of Rabbinic teaching in subsequent generations.″ Id.
15
Islam teaches that the word of God was communicated to the Prophet by the angel Gabriel. See B.R. VERMA, ISLAMIC
LAW--PERSONAL: BEING COMMENTARIES ON MOHAMMEDAN LAW 8 (M.H. Beg & S.K. Verma revs., 6th ed. 1986).
16
A material feature of Jewish law is the fact of its continuing evolution.″ PRINCIPLES OF JEWISH LAW, supra note 12, at 24.
See also Charles Kurzman, Introduction: Liberal Islam and the Islamic Context, in LIBERAL ISLAM: A SOURCEBOOK 5-6
(Charles Kurzman ed., 1998).

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affected by the existing legal systems of the societies within which these religious laws developed.
17

A. Sources of Jewish Law

The Jewish law, referred to as a whole as the Halakhah, is based in the Torah. 18 The written
component of the Torah 19 (referred to also as the Pentateuch n20) is the five Books of Moses:
20
Genesis, Exodus, Leviticus, Numbers, a21 Deuteronomy. 22 The text of these books was conveyed
to Moses on Mount Sinai, along with a large body of ″oral law″ that was not reduced to
writing for several centuries. 23 Where gaps or inconsistencies appeared in the written law, the
process of midrash (interpretation and construction) was used for clarification and for filling out
the skeletal structure. 24 In approximately 200 c.e., Rabbi Judah the Prince produced a codex

17
One source of Jewish law is the ″legal systems of Israel’s contemporary and earliest neighbours. . . . There emerges from
the cuneiform record [discovered by archeologists in the last decade] evidence of a common legal tradition that stretched across the
whole of the ancient Near East. That tradition is reflected especially in a form of jurisprudence that was developed in Mesopotamia
as part of a wider intellectual system and transmitted beyond its boundaries through the medium of cuneiform scribal schools.″
AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW 7 (N.S. Hecht et al. ed., 1996). For Islam, around
750 c.e., as trading with Byzantium and Persia increased, ″inevitably, Byzantine and Persian legal concepts infiltrated into the
Muslim legal philosophy.″ DAVID PEARL, A TEXTBOOK ON MUSLIM LAW 6 (1979).
18
See Mariner, supra note 14, at 9. ″Halakah is the Hebrew-Aramaic name assigned to the newly formed Jewish law during
[the Tannaitic period, approximately 70 c.e.--3rd century c.e.]. It was both a general term referring to the whole corpus of Jewish
Law from that time onwards, and a specific term ascribed to a particular law regarding any specific matter.″ AN INTRODUCTION
TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 101-02.
19
Torah″ also has a broader meaning: ″it describes . . . the entire body of Jewish learning that is continuing and expanding in
our present time.″ Mariner, supra note 14, at 7.
20
[The Torah] is also called the Pentateuch, from the Greek meaning ’five scrolls’ and the Chumash, from the Hebrew
meaning a ’five-fold entity.’″ Id. at 7.
21
These books and other books of the Bible will be cited by name with an accompanying reference to the chapter and verse,
e.g. ″27 Numbers 1-3″ refers to verses 1-3 of chapter 27 of the Book of Numbers.
22
See Mariner, supra note 14, at 7. ″Scholars have detected four major strands which together form the five books of the
Torah, variously labeled as the tenth-century BCE ’J text’ (from the singular use of Yaweh/Jaweh for the name of God), the
eighth-century BCE ’E text’ (from the use of Elohim for God), the sixth-century ’D text’ (derived from the book of Deuteronomy,
which was found during the reign of King Josiah, and is imbued with the teachings of the Prophets), and the fifth-century BCE
’P text’ (which contains the major priestly codes incorporated after the Babylonian exile). Each of these texts has been interwoven
one with another, sometimes providing parallel and even contradictory information.″ Mariner, supra note 14, at 9-10. In addition
to the Pentateuch, the books of the Prophets and the Hagiographa are important sources of Jewish law. See PRINCIPLES OF
JEWISH LAW, supra note 12, at 12.
23
DAYAN I. GRUNFELD, THE JEWISH LAW OF INHERITANCE 3 (1987). Professor Elon distinguishes two components
of Jewish ″Oral Law″: that given to Moses by God on Mt. Sinai and handed down through the generations and that ″created and
developed by the halak-hic scholars.″ PRINCIPLES OF JEWISH LAW, supra note 12, at 54. The Aboth, a tractate of the
fourth order of the Mishnah, describes the transmission of the laws from Moses down through the generations. Aboth 1.1-18,
THE MISHNAH 446-47 (Danby transl. 1985). (See infra text accompanying notes 25-28 for a description of the Mishnah.)
24
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 108.

midrash

Id. at 108-09.

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of laws that was recognized as an authoritative statement of the oral law. 25 This Mishnah
consists of six orders, the third of which is devoted primarily to women and the family. 26Baba
Bathra, which is the third tractate of the fourth order, 27 deals with inheritance. 28 Over time, as the
Torah and the Mishnah became the subject of increasingly sophisticated scholarly debate, the
scholarly commentary was itself written down to serve as a further source for clarification of the
law. The Talmud 29 is the collection of this discursive commentary and is noteworthy in that
the dissenting as well as the consensus opinions are recorded for use in future debate. 30 After
the compilation of the Talmud, 31 scholars continued to develop the Jewish law and to record it
in the form of Responsa 32 and Commentaries. 33 Perhaps the best known of the Commentaries is
that of Maimonides. 34

25
See id. at 116. ″Subsequent to his [the Rabbi’s] compilation of the Mishnah, it was no longer possible to determine a law
without taking the Mishnah into account, even though it was still possible to argue and disagree, just as argument and difference
had been legitimate in the days of the Rabbi himself.″ Id. at 117.

Torah

Introduction to THE MISHNAH, supra note 23, at xiii.

26
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 117-18.
27
Each order of the Mishnah is divided into tractates, each tractate into chapters, and each chapter into numbered paragraphs.
Each numbered paragraph is a mishnah. A mishnah may be referenced in two ways. First, the citation may be to the tractate,
including the numbers of the chapter and mishnah, as it appears in the Mishnah (e.g., Baba Bathra 8:1). Alternatively, the mishnah
cite may refer to the location of the mishnah in a portion of the Talmud (e.g., Baba Bathra 108a). See NAHUM RAKOVER, A
GUIDE TO THE SOURCES OF JEWISH LAW 33 (1994). See infra text accompanying notes 29-30 for a description of the Talmud.
28
AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 117-18.
29
The Babylonian Talmud is often referred to colloquially as the Gemara.″ Id. at 175.
30
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 169.

The great halakhic works, which constitute the basis for all later halakhic literature, were created during the three
centuries following the redaction of the Mishnah by R. Judah the Patriarch (220 C.E.). These works are the Jerusalem
(Palestinian) Talmud created in the Land of Israel (and completed--insofar as it is complete--in the fifth century
C.E.) and the Babylonian Talmud which was edited and redacted in Babylonia, and completed there in the sixth century
C.E. Their primary aim was the clarification and interpretation of the Mishnah of R. Judah the Patriarch. The term
Talmud means ″teaching″ or ″study″; the two Talmudim were compiled through the process of teaching and study of
the earlier halakhic literature, particularly the Mishnah. Whereas the form of the Mishnah is that of an organised
collection of concisely-stated rules, the form of the Talmudim is that of a discursive scholarly commentary on the
Mishnah.

Id. ″The most characteristic feature of the Talmud is the disputation . . . .″ HAIM H. COHN, JEWISH LAW IN ANCIENT
AND MODERN ISRAEL X (1971). ″The Talmud (Gemara), which includes deliberations of the sages, halakhic
commentaries of the early tannaim and amoraim, decisions, epistles, responsa, and decisory rules, has been accepted in the
halak-hic world as authentic and binding material constituting the starting point for the deliberation of any halakhic
subject whatsoever.″ PRINCIPLES OF JEWISH LAW, supra note 12, at 124. The Babylonian Talmud ″became the most
extensively studied standard reference work for halakhic scholars, who elucidated it with notes and commentaries; the
relatively obscure Jerusalem Talmud, lacking supporting literature, has remained more difficult to master.″ AN
INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 179.
31
References in this article to the Talmud will be references to the Babylonian Talmud. See discussion, supra note 30. The
citations will include the name of the tractate, the folio number and the letter ″a″ or ″b,″ which indicates a reference to the front
or back side of the folio. RAKOVER, supra note 27, at 44.
32
See id. at 82.

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Scholars were not the only ones who contributed to the development of Jewish law. Consistently
followed courses of conduct became recognized as minhag or legal norms. 35 Sometimes these
courses of conduct were codified in local enactments, known as takkanot. 36 The takkanot were
sometimes initiated in reaction to changes in social conditions that proved inconsistent with
previously recorded law. 37
One scholar describes the complexity of Jewish law as follows:

Jewish law, then is the sum total of the law laid down in Scripture with interpretations
and amplifications thereof in Talmud and Midrash, and the reforms and innovations
superadded by Talmudical law, the post-Talmudic codes, the Commentaries and the
Responsa, the customary laws and the takkanot of the various communities, and last--but
not least--the rational and ethical principles deduced from them. 38

B. Sources of Islamic Law

The body of Islamic law 39 is referred to as Shari’a or ″the clear path.″ 40 This body of law
emanates primarily from four sources: the Qur’an, Sunna, Qiyas, and Ijma. 41 The Qur’an

More often than not [Responsa] are . . . not judicial decisions in the proper sense, but rather legal opinions of
renowned scholars which were given to local courts or judges before whom a controversy had arisen: instead of
deciding novel or complex questions of law on their own responsibility, they would address themselves to the leading
spiritual and legal authority of their day or of their country and ask for guidance and instruction. . . . A good many
of the Responsa given before the completion of the great codes were incorporated in them . . . .″

COHN, supra note 30, at xiii. ″This body of literature [the Responsa] is the case law of the Jewish legal system, estimated
to include a total of approximately 300,000 judgments and decisions.″ PRINCIPLES OF JEWISH LAW, supra note 12,
at 13.
33
COHN, supra note 30, at xiii. ″In addition to the codes and to the Responsa, there is a third important written source of
Jewish law, and that is the Commentaries.″ Id.

While the authority accorded to the various commentators may vary according to their respective individual
standing and stature, just as the authority accorded to the various Responsa may so vary--from the point of view of
legal theory, all these commentaries, no less than the Responsa, are legitimate and authoritative sources of law.

Id. at xiv.
34
This Commentary ″is printed at the back of each volume in all standard editions of the Talmud . . . .″ RAKOVER, supra
note 27, at 35.
35
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 111.
36
See id. at 112. Most of the takkanot appeared in 13th and 14th century Spain and were limited primarily to monetary
matters. See id. at 284. Professor Elon distinguishes two types of takkanot: those handed down by the Sages and communal
enactments. See MENACHEM ELON ET AL., JEWISH LAW (MISHPAT IVRI): CASES AND MATERIALS 71, 77 (1999). In
addition to minhag and takkanot, Professor Elon describes other legal sources of Jewish law: ″ma’aseh, representing the legal norms
derived from judicial decision or the conduct of a halakhic scholar in a particular concrete case . . . [and] sevarah, representing
[sic] the legal norms originating directly from the legal-human logic of the halakhic scholars.″ PRINCIPLES OF JEWISH LAW,
supra note 12, at 14.
37
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 112.
38
COHN, supra note 30, at xxx.
39
The term ″Islam,″ which appears in the Qur’an, is the term used by Muslims to designate their faith. See WILFRED
CANTWELL SMITH, THE MEANING AND END OF RELIGION 80-82 (1991). ″Islam, by definition in Arabic, means ’submission

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is the word of God as recited by Mohammed, His Messenger (hereinafter the Prophet),
beginning about 610 c.e. 42 The Qur’an was revealed to the Prophet over a period of 23 years,
during which time he resided in both Mecca and Medina. 43 The Qur’an consists of 6219
verses. 44 About five hundred of these verses are legalistic in tone and some eighty verses deal
exclusively with legal topics. 45

The second source of Islamic law, the Sunna, is described as the practice of the Prophet. 46
Essentially, the Sunna is comprised of the ″sayings of the Prophet; his deeds; and his
silent or tacit approval of certain acts which he had knowledge of.″ 47 The Sunna reaffirm
the customary law that was prevalent in Arabia at the time of the Prophet’s life, to the degree
that that law was not contradicted by him. 48 The Hadith, which is the written record of

to the will of God,’ and a Muslim is one who adopts the faith of Islam.″ Nayer Honarvar, Behind the Veil: Women’s Rights in
Islamic Societies, 6 J.L. & REL. 355, 360 (1988).
40
See Chaudhry, supra note 12, at 517.
41
See id. at 517-19. These four sources were systematized by Muhammed ibn Idris al-Shaf’i in the eighth century c.e. See
Muslim Women’s League, Intellectual Background: Islamic Sources of Information and their Development in Islamic Law 2 (visited
Jan. 14, 2000) <http://www.mwlusa.org/pub_book_sources.shtml> [hereinafter Intellectual Background]. See also Kathryn J.
Webber, The Economic Future of Afghan Women: The Interaction between Islamic Law and Muslim Culture, 18 U. PA. J. INT’L.
ECON. L. 1049, 1060 (1997). One commentator distinguishes these sources as follows: ″Those sources from which the law
may be derived are the Qur’an and the Sunna or example of the Prophet. . . . Those sources through which the law may be derived
represent either methods of legal reasoning and interpretation or the sanctioning instrument of consensus . . . .″ WAEL B.
HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES 1 (1997). Some rank ijma ahead of qiyas as a source of law. See,
e.g., Honarvar, supra note 39; at 361, Chaudhry, supra note 12, at 518-19.
42
See FATIMA MERNISSI, THE VEIL AND THE MALE ELITE: A FEMINIST INTERPRETATION OF WOMEN’S
RIGHTS IN ISLAM 28 (1991) [hereinafter THE MALE ELITE].
43
See Intellectual Background, supra note 41, at 3.
44
See TOVE STANG DAHL, THE MUSLIM FAMILY: A STUDY OF WOMEN’S RIGHTS IN ISLAM 35 (1997). The
Qur’an is divided into 114 sura and each sura is divided into verses. Citations to the Qur’an will be citations to the sura and then
the verse: e.g., Sura IV, verse 34.
45
See id. at 36.

Even in these [80] verses there are both gaps as well as doubts as to whether the legal injunction is obligatory or
permissive, as indeed whether it is subject to public or to private sanctions. Thus it is appropriate to describe Islamic
law as consisting of the Qur’anic legislation which was subsequently interpreted by succeeding generations and
which was inclusive of much of the customary law of the Arabs.

Pearl, supra note 17, at 1.

46
See Honarvar, supra note 39, at 361. ″The Sunnah are the sayings and practices of the Messenger Muhammad (P.B.U.H.),
revealed to him by God in meaning, not exact text, as preserved in a written record called the Hadith. These authenticated traditions
explain and illustrate some of the Qur’anic generalities and are a model of exemplary behavior for Muslims.″ Chaudhry, supra
note 12, at 519. ″In the Islamic tradition, after the name of the Messenger Muhammed is spoken or written, Muslims pray for God’s
peace and blessings to be upon him. The English abbreviation (P.B.U.H.) stands for the words ’Peace Be Upon Him.’″ Id. at
512 n.5.
47
Intellectual Background, supra note 41, at 3.
48
See Pearl, supra note 17, at 4.

Sunna

Id.

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the Sunna, 49 was not compiled until many years after the death of the Prophet. 50 Those
who transcribed the Hadith did so by collecting the first-hand testimony of those who had
lived with and observed the Prophet (his ″Companions″) and the second-hand testimony of the
second and third generation followers of the original Companions. 51 Some controversy
exists as to whether the human element involved in narrating and interpreting the Prophet’s
words and actions may have compromised the accuracy of the Hadith. 52 Traditionalists,
however, look solely to the Qur’an and the Sunna as the source of Islamic law 53 and deny
″the possibility of error, bias or evil intent″ in the Hadith. 54

Qiyas and Ijma, the third and fourth sources of the law, are based in human analysis rather
than divine revelation. Qiyas involves an expansion of the law through analogical reasoning,
or the application of a textual rule from one situation to a different situation. 55Qiyas can
be accomplished only if the underlying purpose of the rule itself is clear. 56 A common example
of the use of Qiyas is the expansion of the express prohibition against the use of alcohol
to include a prohibition against the use of drugs which, like alcohol, impair the user’s control
of his actions. 57

Ijma is the consensus reached by scholars and jurists as to a rule of law. 58 As with Qiyas,
Ijma involves the application of human reasoning to the Qur’an and Sunna. Consequently,
although the Ijma may have represented the unanimous opinion of a certain age, ″ijma is
not simply the consensus of all past jurists.″ 59

There are several distinct movements and schools of Islamic law. For purposes of this
article, it is important to note that two schools--the Sunni and the Shi’i--developed soon

49
See Chaudhry, supra note 12, at 519. Debate continues in modern scholarly circles as to the actual origin of the hadith. See
DAVID S. POWERS, STUDIES IN QUR’AN AND HADITH: THE FORMATION OF THE ISLAMIC LAW OF INHERITANCE
1-8 (1986) for a description of this debate. Some ″critical historians consider nearly all the legal hadith reports inventions of the
eighth and ninth centuries.″ Christopher Melchert, Islamic Law, 23 OKLA. CITY U. L. REV. 901, 906 (1998).
50
See Intellectual Background, supra note 41, at 3. ″The Hadith is seen as evidence of the Sunna, or practice of the community.
. . . It is self-evident that, for the classical jurist as for the religious Muslim today, Sunna and Hadith are consubstantial″
(although some Western scholars think that the Sunna is anterior to the Hadith rather than being the reverse or consubstantial).
Pearl, supra note 17, at 4.
51
THE MALE ELITE, supra note 42, at 35. The transcribers also include with the Hadith the isnad, which is the list of the
chain of narrators. See id.
52
See id. at 35-37; Intellectual Background, supra note 41, at 6-8. Muslim feminists use this argument to explain Hadith that
appear sexist. See THE MALE ELITE, supra note 42, at 35-37.
53
See Intellectual Background, supra note 41, at 2.
54
Id. at 6. In actuality, after it became apparent that some false hadith were being fabricated for political purposes, a science
developed by which the accuracy of a hadith could be gauged. See VERMA, supra note 15, at 10. Thus, the traditionalists rely not
on all hadith but only on the ones that have been proved to be authentic. See id.
55
See Chaudhry, supra note 12, at 519.
56
See id.; Intellectual Background, supra note 41, at 3.
57
See Intellectual Background, supra note 41, at 3.
58
See Honarvar, supra note 39, at 361; PEARL, supra note 17, at 11; Chaudhry, supra note 12, at 519; Intellectual Background,
supra note 41, at 4.
59
Intellectual Background, supra note 41, at 4.

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after the death of the Prophet and their origin was basically political in nature. 60 The Sunni
school is that followed by the vast majority of Muslims today and is the school of thought
that is described in this article, unless indicated otherwise. 61 The Shi’i school is practiced by
a significant minority of [*146] Muslims and contains certain critical distinctions relating
to inheritance rights that will be described as appropriate.

II. WOMEN’S PLACE IN THE TWO RELIGIONS

The status of women under both Judaism and Islam is the subject of continuing debate. In
both arenas, there are those who praise the religion for the dignified status to which it elevates
women and those who criticize the religion for its sexist and discriminatory treatment of
women. As will be noted, a modern resurgence of fundamentalism in both religions reinforces
and emphasizes to women’s detriment religious rules and historical traditions that relegate
women to an inferior status. 62

A. Women in Judaism

Dissonant attitudes about the status of women in Judaism appear as early as the creation
accounts in the Book of Genesis. 63 In Genesis 1:27, God created man ″in his own image,
in the image of God He created him, male and female he created them.″ This passage would
seem to give equal dignity to the two genders. 64 Yet later in the same book, God is said
to have created man first, from the ″dust of the ground,″ 65 and then later created woman from
Adam’s rib, 66 because ″it is not good that the man should be alone; I will make him a
help meet for him.″ 67 Thus, woman appears in the creation story both as man’s equal and
as secondary to him.

60
PEARL, supra note 17, at 18. The schism resulted from a struggle for leadership following the death of the Prophet. Id.
Civil war broke out during reign of the fourth Caliph and victory went to the Mulawuya--Umayyad dynasty. Id. The Shi’i remained
allied with the Caliph and his descendants because he was married to the Prophet’s daughter. Id.
61
The followers of the Sunni school comprise about 85% of the current Muslim population. See Jane I. Smith, Islam, in
WOMEN IN WORLD RELIGIONS 237 (Arvind Sharma ed., 1987). The Sunnis are subdivided further into four schools that
take their names from the scholars who founded them: Hanafi, Shafi’i, Maliki, and Hanbali. See VERMA, supra note 15, at 19-22;
John Makdisi, Fixed Shares in Intestate Distribution: A Comparative Analysis of Islamic and American Law, 1984 BYU L.
REV. 267, 271 n.7 (1984).
62
See generally Courtney W. Howland, The Challenges of Religious Fundamentalism to the Liberty and Equality of Women:
An Analysis under the United Nations Charter, 35 COLUM. J. TRANSNAT’L L. 271 (1997).
63
See Kofsky, supra note 1, at 318-19.
64
See Denise L. Carmody, Judaism, in WOMEN IN WORLD RELIGIONS 185 (Arvind Sharma ed., 1987). Kofsky speaks of
the ″Lilith myth,″ a story in which God created Lilith, a wife who deserted Adam because he insisted that she obey him. See Kofsky,
supra note 1, at 319.
65
Genesis 2:7 (The Torah: Henry Holt & Co. 1996).
66
Genesis 2:21-22.
67
Genesis 2:18. One view is that the passages in the second chapter of Genesis are not separate from the passage in the first
book but rather only ″a sequel to the preceding chapter.″ THE SONCINO EDITION OF THE PENTATEUCH AND HAFTORAHS
6 n.3(a) (J.H. Hertz ed., 2d ed. 1965) [hereinafter THE PENTATEUCH AND HAFTORAHS].

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The Book of Genesis also lays the groundwork for the focal point that marriage plays in
Jewish life. 68 The creation chapter states that [*147] the bond of marriage between husband
and wife overrides the parent-child relationship. 69 This chapter arguably allots an elevated
status to a wife, for whom ″a man shall leave his father and his mother.″ 70 However, this
passage, which speaks of the married couple as becoming ″one flesh,″ may also have been
a portent of the English common law concept that a woman’s legal existence was subsumed
into that of her husband at marriage. 71

The Book of Leviticus contains a series of rules relating to bodily impurity that apply both
to men and to women. 72 This book is the origin of the ostracization of a woman while she is
menstruating (niddah). 73 The Book of Leviticus also describes unequal periods of impurity
that follows a woman giving birth to a child. 74 The period of impurity for a woman who
has given birth to a female child is double that of a woman who has given birth to a male child.
75

Several women appear throughout the Bible who are powerful in their own right. 76 Yet
Biblical references to women in general indicate that a woman’s highest honor is to be found
in her role as wife and mother. 77 The Mishnah order that deals with women concentrates
on marriage and divorce. 78 The Talmud emphasizes further ″the husbands’ and fathers’ duties

68
Marriage is one of the most important milestones for Jewish men and women. It is considered the natural state of Jewish
life, and necessary for personal fulfillment.″ Marc S. Cwik, The Agunah Divorce Problem in Jewish Society: Exploring the Possibility
of an International Law Solution, 17 WIS. INT’L L.J. 109, 109 (1999).
69
Genesis 2:24.
70
Id.
71
1 WILLIAM BLACKSTONE, COMMENTARIES *442. Carmody notes that ″in the traditional [Jewish] wedding ceremony,
the bride is totally silent, projecting an image of effacement or nonpersonhood.″ Carmody, supra note 64, at 204.
72
Leviticus 15:1-33.
73
These rules are discussed at length in RACHEL BIALE, WOMEN AND JEWISH LAW 146-74 (1984). Carmody notes that,
although the impurity rules applied equally to men and women originally, ″historically, however, menstruation became a cardinal
focus of the rabbis’ fears and sexism.″ Carmody, supra note 64, at 204.
74
Leviticus 12:1-5. Biale notes that

the reason for the doubling of the impure period after the birth of a girl is unclear. Perhaps it reflects, as has been
suggested by some, the disappointment with the birth of a girl, but this would necessitate seeing the state of impurity
as partially punitive, which does not seem to fit the intentions of Leviticus. One conjecture is that underlying this
legislation is the sense that the birth of a female, who will one day herself menstruate and give birth, is seen as ’doubly
bloody’ and doubly impure.

BIALE, supra note 73, at 152.

75
Id.
76
See Carmody, supra note 64, at 186. ″Deborah is a mighty prophetess, Ruth is a noble daughter-in-law, and Esther is the
saviour of her people.″ Id.; see also Kofsky, supra note 1, at 321.
77
See GRUNFELD, supra note 23, at 11-12, quoting Biblical passages such as Genesis 3:20, in which Adam named his wife
Eve ″because she was the mother of all living.″
78
The topics covered in this order are: ″Sisters-in-law (Yebamoth, Yeb.); Marriage Deeds (Ketuboth, Ket.); Vows (Nedarim,
Ned.); Nazirite-vow (Nazir, Naz.); Suspected Adulteress (Sotah, Sot.); Bills of Divorce (Gittin, Gitt.); Betrothals (Kiddushin, Kidd.)″
AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 119.

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with regard to the maintenance and care for his wife and daughters.″ 79 The Talmud also
adds to the role of the woman/wife/mother the important task of freeing her husband from
mundane household tasks so that he will be free to study the Torah. 80 Generally, women did
not study the Torah, although history records the story of one woman scholar, Beruriah,
who was purportedly able to ″absorb over three hundred laws each day, . . . some of her legal
decisions were accepted as Halachah, despite the opposing views of some Rabbis.″ 81

The status of Jewish women in modern times varies in Reform, Conservative, and Orthodox
Judaism. 82 For example, Orthodox Jews continue to restrict women from participating in
religious rituals even though Reform Jews now admit women to the rabbinate. 83 Jewish
feminists continue to fight for the equalization of women’s status in the religion against the
traditionalist view that this equalization is contrary to talmudic legislation. 84

Jewish women, particularly in Israel, remain threatened by the political influence that may
be wielded by Jewish ″Ultra-Orthodox fundamentalists.″ 85 Like Islamic fundamentalism, 86
Jewish fundamentalism dictates an inferior and submissive status for women. 87 Jewish
fundamentalism ″does not explicitly declare that a wife must be submissive and obedient to
her husband [but] the overall structure of marriage and divorce laws delegates such a
degree of authority and power to the husband as to allow him effectively to coerce his
wife’s obedience.″ 88 Additionally, Jewish fundamentalists, in the name of ″guarding women’s
chastity [and] preventing women from [*149] ’tempting’ men into adultery,″ 89 segregate
the sexes, relegate women to the home, and restrict women’s public dress. 90

B. Women in Islam

One scholar has noted that ″to attempt to talk about women in Islam is of course to venture
into an area fraught with the perils of overgeneralization, oversimplification, and the
almost unavoidable limitations of a Western bias.″ 91 Islam is criticized by some as having

79
GRUNFELD, supra note 23, at 12-13.
80
See Carmody, supra note 64, at 197; Kofsky, supra note 1, at 321.
81
Kofsky, supra note 1, at 322; see also Carmody, supra note 64, at 199.
82
See generally Carmody, supra note 64, at 200-06.
83
See Carmody, supra note 64, at 202. The first woman was admitted to the rabbinate in 1972. See id.
84
See Carmody, supra note 64, at 203.
85
See Howland, supra note 62, at 322. ″Jewish fundamentalists are politically active in Israel.″ Id.
86
Islamic fundamentalism is discussed infra at text accompanying notes 133-36.
87
Howland, supra note 62, at 271. Howland calls the subordination of women a ″core feature″ of fundamentalism in Buddhism,
Christianity, Hinduism, Islam, and Judaism. Id.
88
Id. at 318.
89
Id. at 321.
90
Id. at 321-22.
91
Smith, supra note 61, at 235. The same sentiment is clearly also applicable to a study of the status of women in Judaism.
The author concedes that, as a Western feminist, who is neither Muslim nor Jewish, her ″outsider’s″ view of these issues may well
be imbued with a number of biases.

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created a ″male-dominated society″ 92 and praised by others as having ″elevated the status
of women, providing them with an independent legal and spiritual identity.″ 93 The Prophet’s
legislation is praised by some as having declared ″a new equal status for women in
society,″ 94 yet criticized by others as setting forth a set of rules on family life with ″almost
all of them favoring men.″ 95 A brief examination of the status of women in pre-Islamic
Arabia reveals that, while Islam generally improved the status of women in that society, it
may also have resulted in imposing severe restrictions on the rights that some pre-Islamic
women enjoyed. 96
The primary governmental unit of pre-Islamic Arabia was the tribe. 97 The tribes were
either settled tribes or nomads (the latter often referred to as ″Bedouin″). 98 Children were
viewed as children of the tribe, 99 and the members of the tribe were bound to one another by
blood ties, 100 through either a patrilineal or a matrilineal [*150] system. 101 Marriage
was a ″flexible, loose institution with no strict, uniformed rules″ 102 and a woman’s role within
a marriage ranged from that of property 103 to ″free agent.″ 104 Infanticide, primarily
female infanticide, was a common practice. 105 Polygamy was also prevalent. 106 In those
systems in which a wife was regarded as property, women had no property or inheritance rights
92
Honarvar, supra note 39, at 365.
93
Chaudhry, supra note 12, at 513.
94
Id.
95
Honarvar, supra note 39, at 365.
96
Islamic feminist Fatima Mernissi finds ″fascinating″ the degree to which modern Islamic scholars refuse to believe that any
customs that favored ″female sexual self-determination″ existed prior to the advent of Islam. FATIMA MERNISSI, BEYOND
THE VEIL: MALE-FEMALE DYNAMICS IN MODERN MUSLIM SOCIETY 66 (1987) [hereinafter BEYOND THE VEIL].
97
Muslim Women’s League, Women in Pre-Islamic Arabia 2 (visited Jan. 1, 2000) <http://www.mwlusa.org/pub_book_
herstory.shtml> [hereinafter Pre-Islamic Arabia].
98
See Honarvar, supra note 39, at 356.
99
See BEYOND THE VEIL, supra note 96, at 73-74; Honarvar, supra note 39, at 358; Pre-Islamic Arabia, supra note 97, at
3.
100
See Pre-Islamic Arabia, supra note 97, at 3.
101
Honarvar, supra note 39, at 357. ″Of the two systems of kinship, the matrilineal was practiced among the settled communities
and the patrilineal system was used by the nomads.″ Id. In a matrilineal system, the children of the mother stayed with the
mother’s tribe while in a patrilineal system, the identity of the child’s father determined the child’s tribe. BEYOND THE VEIL,
supra note 96, at 74.
102
Pre-Islamic Arabia, supra note 97, at 5.
103
In a ″marriage by capture,″ the woman was basically a slave of her husband. Pre-Islamic Arabia, supra note 97, at 6.
104
In some other tribes, it was customary that the woman did not leave her own tribe but either married someone within the
tribe or married a stranger who agreed to stay with her family . . . . The women of these tribes enjoyed more freedom and had the
right to dismiss their husbands at will.″ Pre-Islamic Arabia, supra note 97, at 6. The Prophet’s mother was the member of such
a tribe. His father died when his mother was seven months pregnant with him. The Prophet stayed with his mother’s tribe until she
died when he was six years old. See BEYOND THE VEIL, supra note 96, at 69-70.
105
See Pre-Islamic Arabia, supra note 97, at 4. Infanticide of female children occurred primarily among poor communities
where ″girls . . . were viewed as less productive than boys.″ Id. Female children were also sometimes killed because their fathers
were afraid that, if captured during tribal warfare, the girls might shame the father by refusing to return to him after the war
ended. See id. at 4.
106
See id. at 7. ″It is reported that a man could have as many as 100 wives.″ Id. The term ″polygamy″ is used here to refer
both to ″polygyny,″ (the practice of having more than one wife) and ″polyandry″ (the practice of having more than one husband).

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and could be divorced at will by their husbands. 107 In the matrilineal systems, however,
some rights of inheritance in women most likely existed. 108 In Mecca, the Prophet’s first wife
was a successful businesswoman ″who had inherited a large fortune from her late husband.″
109

The Prophet replaced the tribe with the family as the primary social unit. 110 He adopted
the patrilineal system as the framework for [*151] his scheme of inheritance, 111 but he
established explicit inheritance rights for women. 112 The Prophet restricted to four the number
of wives that a man could have and forbade a woman from having more than one husband.
113
He abolished the practice of female infanticide. 114

Strong women played an important role in the life of the Prophet and the foundation of the
religion. The Prophet’s first wife, Khadija, supported his cause and became known as
Both polygyny and polyandry seem to have been practiced in pre-Islamic Arabia. See Pre-Islamic Arabia, supra note 97, at 7.
However, polygamy does not seem to have been practiced in either Mecca or Medina. See BEYOND THE VEIL, supra note 96,
at 68.
107
See Chaudhry, supra note 12, at 513.
108
See Pre-Islamic Arabia, supra note 97, at 8. Bedouin customs probably did not favor women, but ″one should be wary of
assuming that customs among pastoralists were uniform in this respect . . . . It should at least be noted that among the Rwala lords
of the desert . . . not inconsiderable rights of inheritance for women [have been found to have existed].″ Martha Mundy, The
Family, Inheritance and Islam: A Re-examination of the Sociology of Fara-id Law, in ISLAMIC LAW: SOCIAL AND HISTORICAL
CONTEXTS 30 (1988).
109
THE MALE ELITE, supra note 42, at 27; see also Honarvar, supra note 39, at 382; Pre-Islamic Arabia, supra note 97, at
8.
110
See PEARL, supra note 17, at 122; BEYOND THE VEIL, supra note 96, at 82.

In the tribal society of pre-Islamic Arabia the system of inheritance was designed to keep property within the
individual tribe and maintain its strength as a fighting force. The tribe was patriarchal and patrilineal. Women occupied
a subordinate and subjugated position within the group whose bond of allegiance was that of ’asabiyya--descent
through male links from a common ancestor. A woman who married into another tribe belonged henceforth, along
with her children, to the tribe of the husband. The maternal or uterine relationship, therefore, lay outside the structure
of tribal ties and responsibilities. In these circumstances the proper exploitation and preservation of the tribal
patrimony meant, inter alia, the exclusion of females and non-agnate relatives from inheritance and the enjoyment
of a monopoly of rights of succession by the male agnate relatives . . . .

Under Islam, however, the political and social scheme which had supported this customary system of succession
was transformed. Politically, the bond of a common religious faith, with allegiance to the Prophet as the head of the
community, transcended tribal ties and within the brotherhood of Muslims there was no place, in theory at any
rate, for inter-tribal hostility or warfare. Socially, Islam emphasized the more immediate family tie existing between
a husband, his wife, and their children, and aimed at elevating the status of the female within this group. These
changes are mirrored in the novel rules of succession introduced by Islam.

N.J. COULSON, SUCCESSION IN THE MUSLIM FAMILY 29 (1971) [hereinafter SUCCESSION IN THE MUSLIM
FAMILY].
111
See AHARON LAYISH, WOMEN AND ISLAMIC LAW IN A NON-MUSLIM STATE: A STUDY BASED ON DECISIONS
OF THE SHARI’A COURTS IN ISRAEL 279 (1975); Honarvar, supra note 39, at 382. As will be examined later in this
Article, the Shi’a approach to inheritance does not use the patrilineal base as its foundation. See infra text accompanying note
208.
112
See infra text accompanying notes 204-05.
113
See Honarvar, supra note 39, at 369.
114
See Pre-Islamic Arabia, supra note 97, at 9.

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″the Mother of all believers.″ 115 Another of his wives, A’isha, is portrayed as a powerful
influence, both on the Prophet and on his followers. 116 The Prophet’s daughter, Fatima, stood
by him during his life and played a political role after his death. 117 Despite these forceful
feminine influences, some believe that women as a class do not fare particularly well in those
segments of the Qur’an and the Shari’a that deal with topics other than inheritance and
property rights. This belief is summarized as follows:

The purpose of women, according to the Koran, is to compliment men. Women’s

rights to employment and participation in public life, freedom of movement and freedom
of organization, are severely restricted through a combination of the Shari’a principles
of qawam (men’s guardianship over women), 118 hijab (the veil) and segregation between
men and women. Examples of women’s inequality can be found in the administration
of justice and in certain aspects of family law. A woman’s judicial testimony is deemed
to be of half the value of that of a man, in civil cases, and is not accepted at all in
serious criminal cases. 119 In certain types of wrongful homicide, monetary compensation
paid to the heirs of a female victim is less than that paid to the heirs of a male victim
and a woman’s share in inheritance is half that of a man’s. Additionally, no woman may
hold any public office which involves exercising authority over men. 120

In addition, one verse of the Qur’an seemed not only to confirm the inferior role of women
but also to sanction wife-beating. This verse states:

Men are the maintainers of women because Allah has made some of them to excel
others and because they spend out their property; the good women are therefore obedient,
[*153] guarding the unseen as Allah has guarded, and (as to) those on whose part
you fear desertion, admonish them, and leave them alone in the sleeping-places and beat
them; then if they obey you, do not seek a way against them; surely Allah is High,
Great. 121

Finally, proponents of the practice of female circumcision cite this ″tradition as ’a duty on
every Muslim woman.’″
115
Benazir Bhutto, Politics and the Muslim Woman, in LIBERAL ISLAM: A SOURCEBOOK 111 (Charles Kurzman ed.,
1998).
116
See JAN GOODWIN, PRICE OF HONOR: MUSLIM WOMEN LIFT THE VEIL OF SILENCE ON THE ISLAMIC
WORLD 42 (1994); Bhutto, supra note 115, at 111.
117
See Bhutto, supra note 115, at 111. As noted supra note 60, the split between the Sunni and Shi’a schools related to the
fact that the leader of the Shi’i was married to Fatima.
118
The guardianship of women by men is required, among other reasons, because of women’s ″sexual irresponsibility.″ Urfan
Khaliq, Beyond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah, 2
BUFF. J. INT’L L. 1, 14 (1995).
119
An alternative version of this rule states that the rule applies only in debtor-creditor transactions, that it is an exception to
the general rule that women can serve as witnesses equally with men, and that its original purpose (to secure accurate testimony as
women usually did not engage in commercial transactions and thus might be more likely to make a mistake) may have disappeared
in modern times when women are actively involved in the commercial world. Muslim Women’s League, Women in Society:
Legal Rights (visited Jan. 19, 2000) <www.mwlusa.org/pub_book_legalrights.shtml>.
120
Carolyn Ratner, Book Review, Islamic Laws as Violations of Human Rights in the Sudan: God Has Ninety-Nine Names, by
Judith Miller, 18 B.C. THIRD WORLD L.J. 137, 150 (1998).
121
Sura IV, verse 34, THE HOLY QUR’AN 51 (Shakir transl.).

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The status of women in Islam is complicated by the fact that scholarly interpretation of the
Qur’an may have been subject to the biases of those who stood to benefit by a society that
favored their gender. 123 Women played no part in interpretation of the Qur’an, and their
absence ″has been mistakenly equated with voicelessness in the text itself.″ 124 Furthermore,
social norms in many male-dominated countries may have obscured many of the original
purposes of the Qur’anic legislation. 125 Former Prime Minister of Pakistan, Benazir Bhutto,
claims that the subjugation of women in Islam ″has got nothing to do with the religion,
but it has got very much to do with material or man-made considerations.″ 126 She concludes,
″It is not Islam which is averse to women rulers, I think--it is men.″ 127

An example of the effect of male interpretation and social norms appears in the development
of the concept of ″the veil.″ The required covering of a woman’s face and body when she
ventures out in public is seen by many as a symbol of the Islamic subordination of women.
128
[*154] However, this practice does not seem to have been mandated in the Qur’an.
129
The Qur’an does state that, if a man is to ask anything of the wives of the Prophet, ″ask
it of them from behind a curtain.″ 130 Muslim feminist Fatima Mernissi describes the
origin of this requirement as an event in which the Prophet, who was eager to be with his
newly married wife, yet unwilling to be impolite to wedding guests who had lingered too long,
eventually let fall a curtain between himself and the last-remaining of his Companions. 131
She then goes on, however, to describe how recent books by Muslim fundamentalists

123
See discussion of hadith, supra at text accompanying notes 49-54.
124
Amina Wadud-Muhsin, Qur’an and Women, in LIBERAL ISLAM: A SOURCEBOOK 128 (Charles Kurzman ed., 1998).
Wadud-Muhsin’s analysis of the Qur’an includes a discussion of how the Arabic language itself, which contains no neuter form,
must be taken into account when determining whether certain passages reflect an intent to establish males--as opposed to humankind
in general--in a position of superiority. See id. at 129-30.
125
This understanding [that social norms may be the major obstruction to women’s rights in Islamic countries] supports the
claim of many Islamic feminists that a rejection of the oppression of women does not necessarily involve a rejection of Islam.″
Webber, supra note 41, at 1052-53. It is beyond the scope of this article to attempt to further a debate whose intensity dominates
both modern scholarly texts and the political and social life of many Muslim societies.
126
Bhutto, supra note 115, at 111.
127
Id.
128
See Pamela Goldberg, Seeing through Women’s Eyes: A Review Essay of Price of Honor: Muslim Women Lift the Veil of
Silence on the Islamic World, 11 N.Y.L. SCH. J. HUM. RTS. 603, 608 (1994). ″The veiling of women has become virtually
emblematic of Muslim extremism throughout the world.″ Id.
129
See Sura XXXIII, verse 59, THE HOLY QUR’AN 281. Verse 59 of sura XXXIII arguably alludes to the veiling of women
when it states: ″say to your wives and daughters and the women of the believers that they let down upon them their overgarments,
this will be more proper, that they may be known, and that they will not be given trouble . . . .″ In verse 31 of sura XXIV,
″believing women″ are admonished to ″cast down their looks and guard their private parts and do not display their ornaments
except what appears thereof, and let them wear their head-coverings over their bosoms . . . .″ Sura XXXIII, verse 59, THE HOLY
QUR’AN 281. Men also were told to ″cast down their looks and guard their private parts, that is purer for them.″ Sura XXIV,
verse 30, THE HOLY QUR’AN 230. There is some controversy as to whether the veiling and seclusion of wealthy Arabian women
for the purpose of protection was common at the time the Qur’an was revealed. Compare Wadud-Muhsin, supra note 123, at
132 (stating that such was the case) with ANWAR HEKMAT, WOMEN AND THE KORAN: THE STATUS OF WOMEN IN ISLAM
199 (1997) (stating that Arabian women wore only a headdress, and ″complete concealment as it is practiced today did not
exist″).
130
Sura XXXIII, verse 53, THE HOLY QUR’AN 280.
131
See THE MALE ELITE, supra note 42, at 85-88.

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emphasize the importance of women wearing the veil. 132 As Mernissi notes, the ″relatively
minor incident″ in the Prophet’s life, which originally was prompted by a need to separate
public from private space, ″was to turn into a segregation of the sexes.″ 133

In addition to a history of male interpretation and legislation, the resurgence of Muslim

fundamentalism in recent decades has had a profound impact on the status of women in affected
societies. 134 In general, countries in which fundamentalist rule has taken hold have
adopted laws that severely restrict the rights of women to work outside the home, 135 to
appear unveiled in public, and to protect their rights in the context of marriage and divorce.
136
Thus, the rights of women [*155] in these male-dominated cultures have become
virtually non-existent. Yet, ironically, even these fundamentalist regimes illustrate a grudging
recognition of women’s innate power, as their motivating theory seems to be ″that women
harbor the seeds of destruction of all society and that to avoid this they and their sexuality must
be carefully controlled.″ 137

III. MARRIAGE AS THE CONTEXT FOR SUCCESSION RIGHTS

Marriage is considered a cornerstone of both Judaism and Islam. 138 The succession rights
of women under Jewish and Islamic law cannot be understood fully unless they are examined
in the larger context of the property rights of women within a marriage. Marriage as an
institution in pre-Islamic Arabia bore many similarities to marriage in early Biblical times.
In both cultures, marriage was a business transaction between the family of the groom and the
family of the bride. 139 The bride was a productive piece of property who was bought by
the groom from her family. 140

In both of these cultures, polygyny was permitted. 141 In the Jewish tradition, the number of
wives a man could have was limited only by his ability to fulfill his marital and sexual
duties to each of them. 142 The only man for whom the number of wives was limited was

132
See id. at 97-99.
133
Id. at 100-01.
134
See generally GOODWIN, supra note 116.
135
See generally Anastais Telesetsky, In the Shadows and Behind the Veil: Women in Afghanistan under Taliban Rule, 13
BERKELEY WOMEN’S L.J. 293 (1998); Webber, supra note 41, at 1066-67.
136
See Howland, supra note 62, at 306-16.
137
Id. at 307.
138
See Cwik, supra note 68, at 109; see also Honarvar, supra note 39, at 365. The Prophet is reputed to have said that
″marriage is half the religion.″ GOODWIN, supra note 116, at 36.
139
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 136; Honarvar,
supra note 39, at 368; Kofsky, supra note 1, at 323.
140
See id. The Arabic term that is still sometimes used to describe an unmarried girl translates as ″another’s wealth.″ GOODWIN,
supra note 116, at 44.
141
RUTH LINK-SALINGER, JEWISH LAW IN OUR TIME 68-69 (1982); PEARL, supra note 17, at 69; PRINCIPLES OF
JEWISH LAW, supra note 12, at 367. The Torah speaks of a man having two wives. Deuteronomy 21:5-17. The Mishnah refers to
″co-wives.″ Yebamoth 1, THE MISHNAH 218-21 (Danby transl.).
142
See BIALE, supra note 73, at 49.

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the king, and he was limited to 18. 143 When asked how many wives a man should have,
the rabbis speculated that the number four was realistic in that the husband could serve (or
service) each one for one week in the month. 144 It was not until somewhere between 960 and
1028 that a definitive Jewish order against polygyny was entered. 145

[*156] As noted above, the Prophet did not object to polygyny but limited the number of
wives that a man could have to as many as the man could care for, up to four. 146 The Prophet
himself was married to several women through the course of his life. 147 Some commentators
note that, at the time the Prophet recited the Qur’an, it would have been an unrealistic
burden on women to abolish polygyny because tribal warfare had depleted the number of
men in the communities and a woman needed the support of a marriage for her own financial
well-being. 148

In pre-Islamic Arabia, as well as in both religions, the husband could divorce the wife
without the wife’s consent. Later Jewish law required the consent of the wife, although the
husband technically is the only one who can deliver the get. 149 Islamic law allows a man to
divorce his wife unilaterally but gives the wife only a limited right to seek a divorce,
either upon her husband’s consent or through the judicial system, unless the right to seek
divorce on other grounds was reserved by the wife in the marriage contract. 150

A. Marriage in Jewish Law

143
See id.
144
See id.
145
See id. at 50. One commentator notes that monogamy was prompted by social and economic concerns rather than religious
ones:

When we find [Cairo] Geniza society being essentially monogamous, the reason was not a new moral, legal, or
religious concept of marriage, but the historical fact that the Jewish people had become completely urbanized, with
the ″bourgeoisie″ setting the tone. Parents, after having toiled all their lives to scrape together a sumptuous dowry for
their daughter, saw to it that she should not suffer in marriage. They stipulated in the marriage contract that the
husband was not permitted to take a second wife. In case he did, he had to pay the late installment to the marriage
gift in full--a most efficient deterrent--and to set his wife free at her demand, even if he did not wish to do so. Costly
fines were also stipulated.

LINK-SALINGER, supra note 141, at 68-69.

146
See Honarvar, supra note 39, at 369. Verse 3 of sura IV provides: ″And if you fear that you cannot act equitably towards
orphans, then marry such women as seem good to you, two and three and four, but if you fear that you will not do justice between
them, then (marry) only one . . . .″ Sura IV, verse 3, THE HOLY QUR’AN 69.
147
See BEYOND THE VEIL, supra note 96, at 70. Yet during the life of his first wife, Khadija, the Prophet did not marry any
additional wives. Bhutto, supra note 115, at 110. It is also reported that the Prophet opposed his son-in-law when he sought to
marry a woman in addition to the Prophet’s beloved daughter, Fatima. See BEYOND THE VEIL, supra note 96, at 70.
148
See PEARL, supra note 17, at 1; WILLIAM MONTGOMERY WATT, A SHORT HISTORY OF ISLAM 92-93 (1996).
149
See PRINCIPLES OF JEWISH LAW, supra note 12, at 414. The get is the ″bill of divorcement.″ Id. If a woman does not
receive the get, she is destined to live life as an agunah, a ″woman chained to a dead marriage.″ Cwik, supra note 68, at 110.
150
See Honarvar, supra note 39, at 372-73. For a discussion of the reservation of rights in the marriage contract, see generally
JOHN L. ESPOSITO, WOMEN IN MUSLIM FAMILY LAW 23-24 (1982).

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Marriage as an institution is similar under current Jewish and Islamic law in that it is in
both cases based on a marriage contract between the spouses. 151 In Jewish law, the contract
is called the ketubah. 152 This contract evolved from the earlier contract under which the
groom would pay the marriage price, the mohr, to purchase the bride. 153 The ketubah
developed into a contract between the husband and wife that outlined both the husband’s and
the wife’s obligations. 154 The ketubah amount was no longer payable to the bride’s
family but to the bride herself. 155 One important purpose of the ketubah is to provide for
the wife in the event of divorce or her husband’s death. 156 Thus, the ketubah speaks of an
amount of property that is available to the wife in the event of either of these occurrences. 157
The ketubah amount is minimal, but the husband is free to add to that amount. 158 The
ketubah amount is a lien on the husband’s property. 159 At the husband’s death or upon divorce,
the wife is also entitled to a return of this amount and of her dowry. 160 This property is
sometimes referred to as ″iron sheep″ or ″iron flock″ assets. 161 The assets are merged into
the husband’s estate during the course of the marriage and, as with assets such as sheep, he is
free to enjoy the fruits of the property during that time. However, the property resembles
iron in that, at death or divorce, the value of the property when the marriage began must be
returned to the wife (even if the property itself has gone down in value). 162

[*158] The husband has the duty to maintain the wife during the marriage. 163 This duty
exists even if the husband is in financial difficulty and the wife has the independent means to
support herself. 164

B. Marriage in Islamic Law

The Islamic marriage contract calls similarly for a payment (the mehr or mahr) to be made
to the bride by the groom. The institution of this payment was seen as an elevation of the

151
See JUDITH E. TUCKER, IN THE HOUSE OF THE LAW: GENDER AND ISLAMIC LAW IN OTTOMAN SYRIA AND
PALESTINE 38-39 (1998); Heather Lynn Capell, After the Glass has Shattered: A Comparative Analysis of Orthodox Jewish
Divorce in the United States and Israel, 33 TEX. INT’L L.J. 331, 334-35 (1998); Honarvar, supra note 39, at 371.
152
See BIALE, supra note 73, at 80.
153
See Kofsky, supra note 1, at 324-25.
154
See BIALE, supra note 73, at 80.
155
See id.
156
See Capell, supra note 150, at 335; Kofsky, supra note 1, at 326.
157
See Kofsky, supra note 1, at 326.
158
DAVID WERNER AMRAM, THE JEWISH LAW OF DIVORCE ACCORDING TO THE BIBLE AND TALMUD 116
(1975); IRWIN W. HAUT, DIVORCE IN JEWISH LAW AND LIFE 7-8 (Studies in Jewish Jurisprudence Vol. V, 1983).
159
See HAUT, supra note 158, at 9.
160
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 13; Kofsky, supra
note 1, at 330.
161
See PRINCIPLES OF JEWISH LAW, supra note 12, at 391; Kofsky, supra note 1, at 329.
162
See PRINCIPLES OF JEWISH LAW, supra note 12, at 391.
163
See id. at 394.
164
See id. at 395.

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woman from her previous status as an ″object of sale″ 165 to that of ″a contracting party in
her own right.″ 166 The mehr is not a purchase price paid for the wife to the wife’s family;
rather, like the ketubah amount, it is a free gift given into the sole possession of the
woman upon the making of the marriage contract. 167 The mehr may be specified 168 or
unspecified 169 and a specified mehr may be paid in two parts--prompt and deferred. 170 The
prompt mehr is to be paid immediately upon the marriage. 171 The deferred mehr is an
unsecured debt from the husband to the wife. 172 The wife is free to demand the deferred
mehr at any time during the marriage and, if the husband does not pay it, she can ″refuse herself
to him.″ 173 The deferred mehr is typically not paid until the death of the husband or
divorce. 174 If due at death, the mehr ″must be paid before any other estate distribution
takes place.″ 175

In addition to paying the mehr, the Muslim husband is required to provide support for his
wife during the marriage in the form of food, shelter, clothing, and medical care. 176 However,
this support is based on the wife’s willingness to submit to her husband and his refusal to

165
One verse of the Qur’an implies that, in pre-Islamic law, wives were subject to being inherited as part of their husband’s
estate. Sura IV, verse 19 provides in part: ″O you who believe! It is not lawful for you that you should take women as heritage against
(their) will.″ THE HOLY QUR’AN 50. See POWERS, supra note 49, at 55.
166
PEARL, supra note 17, at 2-3.
167
Sura IV, verse 4 of the Qur’an states: ″And give women their dowries as a free gift, but if they of themselves be pleased
to give up to you a portion of it, then eat it with enjoyment and with wholesome result.″ THE HOLY QUR’AN 69. Webber notes
that studies have shown that the mehr is often given to the woman’s family rather than to her. See Webber, supra note 41, at
1073-74.
168
See PEARL, supra note 17, at 58-59.

The traditional Hanafi and Maliki jurists developed a minimum limit to the specified dower, by the use of analogy
with the minimum value of stolen goods which rendered a thief liable to one of the hudud penalties; namely, amputation
of the hand. The sum was 10 dihrams in Hanafi law and 3 dihrams in Maliki law . . . . No maximum limits were
laid down by the early jurists.

PEARL, supra note 17, at 58. The husband must pay the amount that is announced or ″specified . . . if he intended to do
so, but often the husband will claim that there was a private agreement to pay less and this is what is enforced.″ Id. at 59.
169
The amount of unspecified mehr is based on the mehr paid to similarly situated women. See id. at 61.
170
See id. at 58.
171
See id. at 63.
172
See PEARL, supra note 17, at 62; Honarvar, supra note 39, at 368.
173
See Honarvar, supra note 39, at 368. ″It should be pointed out that although mehr (dower) is an actionable claim, in real
life, it is not common practice for the wife to make such demand.″ Id.
174
See id. ″The issue generally comes up at the dissolution of marriage. Even then, the wife, under intense pressure from the
husband, is likely to forego her claim in exchange for a divorce.″ Id.
175
Chaudhry, supra note 12, at 548.
176
See Webber, supra note 41, at 1064.

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177
provide maintenance may not be sufficient grounds for her to sue for divorce. The
wife’s male relatives also are responsible for supporting her. 178
IV. INHERITANCE UNDER JEWISH AND ISLAMIC LAW

Despite the similarity of their approaches to marriage and divorce, the Jewish and Islamic
legal systems differ dramatically in their approach to women’s rights to inheritance and
succession. In general, the Islamic law offers an intricately specified system of inheritance
rights in contrast to the vague outlines that comprise Jewish inheritance law. In particular,
the two laws differ in that Islamic law provides specific shares of property for women in their
spouses’ and relatives’ estates, while Jewish law allows women to inherit only in very
limited circumstances. In any event, in both legal systems, women’s inheritance rights are
generally not equal to those of men.
A. Jewish Inheritance Law

As noted, the Biblical inheritance laws are vague, derived more from Biblical references
and illustrations than from explicit directions. [*160] The Biblical passages focus often on
the necessity of retaining the stability of the tribes of Israel 179 by maintaining property
within the tribe via the patrilineal line. 180
The text of Numbers 27:8-11, which is cited as the seminal Biblical source of the laws of
succession, provides as follows:

177
See id. In the Hanafi school, lack of support may constitute sufficient grounds for annulment of the marriage. See JUDITH
E. TUCKER, IN THE HOUSE OF THE LAW: GENDER AND ISLAMIC LAW IN OTTOMAN SYRIA AND PALESTINE 82-83
(1998).
178
See Chaudhry, supra note 12, at 541-42; Webber, supra note 41, at 1069. However, although ″[a] woman is always
guaranteed sufficient care, and she has no legal obligation to support anyone,″ her support is often the leverage by which her
male family members persuade her to give up her rights of inheritance. Chaudhry, supra note 12, at 541-42; Webber, supra note
41, at 1069.
179
Rabbi Grunfeld, however, states that the inheritance laws

flow from the concept of unity of the family. The family as a religious, moral, and sociological unit is concerned
not only with the relationship of husband and wife, parents and children, and the latter’s education, but with the
acquisition of financial means to create the where-withal for life’s physical sustenance which is necessary for the
achievement of life’s spiritual aims. When the father and bread-winner dies, it is therefore essential and considered a
natural law that the worldly goods he has acquired in his lifetime should be passed on to members of the family
who continue his life’s purpose. The concept of the family, however, is taken in a wider sense, comprising not only
direct descendants, but also ascendents and their offspring.

GRUNFELD, supra note 23, at 10.

180
Moses explained that daughters who inherit must stay with the tribe: ″So shall no inheritance into the family of the
children of Israel remove from tribe to tribe; for the children of Israel shall cleave every one to the inheritance of the tribe of his
fathers. And every daughter, that possesseth an inheritance in any tribe of the children of Israel, shall be wife unto one of the
family of the tribe of her father, that the children of Israel may possess every man the inheritance of his fathers.″ Numbers 36:7-9.
Later Sages limited the duty to marry within the tribe to the Biblical generation only. PRINCIPLES OF JEWISH LAW, supra
note 12, at 446.

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181

This passage contains a number of clear rules. First, at the father’s death, the sons, if any,
received his estate. 182 If there were no sons, the property passed to his daughters. If there were
no daughters, the property passed to the decedent’s brothers and, if none, to his uncles.
The passage seems to exclude female heirs (other than daughters), the mother’s family, and
even the male ancestors of the decedent. The passage also does not explicitly include the
issue of the decedent’s children or the issue of the decedent’s brethren.
This Biblical passage is the subject of the eighth and ninth chapters of Baba Bathra, the
tractate of the Mishnah that deals with the ownership of property. The Baba Bathra interprets
the passage so as to include issue and to fill in certain other gaps in the order of succession.
It provides in part as follows:
183

Thus, the descendants of the decedent’s sons, daughters, brothers, and uncles hold a place
in the order of inheritance, 184 as does the decedent’s father. 185
Even the elucidation in the Mishnah did not satisfactorily answer all questions about the
order of inheritance. One disputed issue was that of who should inherit if the decedent was
survived by a daughter and the daughter of a deceased son. The Talmud includes discussions
of this issue and states definitively that, contrary to the teachings of the Sadducees, 186 the son’s
daughter would inherit and the decedent’s daughter would take nothing. 187

[*162] Another question on which modern scholars still seem to disagree is whether the
priority of males over females continues throughout the entire order of succession. For
example, Rabbi Shmuel Shilo 188 describes the order of succession as ″a parentelic system,
conferring the right of inheritance on all kin of the deceased in the agnate (paternal) line
181
Numbers 27:8-11.
182
The Torah indicates that the eldest son would receive a double share. Deuteronomy 21:17; PRINCIPLES OF JEWISH
LAW, supra note 12, at 434. However, Hiers points out that this portion of Deuteronomy is illustrative of a practice that is never
expressly directed and rarely even referred to in any other Biblical text. See Richard H. Hiers, Transfer of Property by Inheritance
and Bequest in Biblical Law and Tradition, 10 J. L. & REL. 121, 142-43 (1993-94).
183
Baba Bathra 8:2, THE MISHNAH 376. A footnote indicates that the last sentence refers to the offspring of the father who
are not also the direct descendants of the decedent. See id.
184
Commentary in the Babylonian Talmud explains that the spelling used in the Torah for the phrase ″he have no [son] or
[daughter]″ indicates that the verse requires an examination not only of whether the decedent had a son (or daughter) but also of
whether there was someone who could stand in the son’s (or daughter’s) place--that is, a descendant of the son or daughter.
TALMUD BAVLI, Bava Basra 115a. (Schottenstein ed. 1994) (In this edition, the Baba Bathra is referred to as the Bava Basra.)
185
The Babylonian Talmud contains an extensive discussion of the bases for determining that the sons and daughters of the
decedent precede the decedent’s father in the order of succession. TALMUD BAVLI, Bava Basra 108a-b.
186
The Sadducees, who are often the dissenters in discussions in the Talmud, adhered strictly to the written law. COHN,
supra note 30, at viii.
187
TALMUD BAVLI, Bava Basra 115b. ″If the deceased’s sole survivors should be a daughter and a son’s daughter, the latter
will inherit the whole estate since she takes the place of her father to the exclusion of her sister: the Sadducees, however, held
the opinion that in such event the inheritance is shared between the deceased’s daughter and his granddaughter (BB 115-116a).″
PRINCIPLES OF JEWISH LAW, supra note 12, at 447.
188
Lecturer in Jewish Law, Hebrew University of Jerusalem. PRINCIPLES OF JEWISH LAW, supra note 12, at 866.

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of descendancy and ascendancy.″ 189 Thus, descendants would inherit first. If there were no
descendants, the father and his descendants (presumably both male and female descendants)
would inherit next. In the absence of a surviving father, siblings, or descendants of siblings,
the grandfather and his descendants would inherit, and so on. 190 Rabbi Dayan Grunfeld,
191
on the other hand, offers a more explicit set of rules, which clearly favor males over females
throughout. He describes ″the order of succession in the Jewish Law of Inheritance, based
on the interpretation of the Oral Law,″ 192 as follows: ″1) the sons 2) their descendants 3) the
daughters 4) their descendants 5) the father 6) the brothers 7) their descendants 8) the
sisters 9) their descendants 10) the grandfather 11) the brothers of the father 12) their
descendants 13) the sisters of the father 14) their descendants, etc., etc.″ 193 Rabbi Grunfeld’s
interpretation gives the father a place of priority, which means that the father takes to the
exclusion of the decedent’s brothers. Also, Rabbi Grunfeld retains the priority of males over
females (i.e., brothers over sisters) throughout the parentelic system. Thus, the disputation
that has been so instrumental in the development of Jewish law continues into modern times.

As will be illustrated more fully below, the Jewish laws of inheritance favor men over
women in three ways. First, a decedent’s daughter is precluded from taking any portion of
her father’s estate if he is survived by sons or descendants of sons. 194 Second, the mother and
[*163] the mother’s family are not heirs of a decedent. 195 Third, a husband inherits
from his wife, but a wife does not inherit from her husband. 196

In modern times, many Jews have mitigated this discriminatory effect through the use of
testamentary bequests and devises. 197 Yet this process, too, remains subject to scholarly
dissension. References to wills are basically non-existent in the Bible. 198 The Baba Bathra
prohibits a man from making a testamentary disposition of his property that abrogates the
required order of succession. 199 However, the same tractate allows a man to give away his
property during his life. 200 These inter vivos gifts can take the form of an irrevocable

189
Id. at 446.
190
See id.
191
Rabbinical Judge and member of the London Beth Din (Court of the Chief Rabbi). GRUNFELD, supra note 23, at xvii.
192
Id. at 10.
193
Id. A similar system is described as the ″Order of Inheritance as developed by later Jewish law″ in THE PENTATEUCH
AND HAFTORAHS, supra note 67, at 692 n.11.
194
Under Rabbi Grunfeld’s interpretation, not only do sons and sons’ descendants preclude daughters, but all male relatives
and their descendants take priority over females of equal relationship and their descendants. GRUNFELD, supra note 23, at 10.
195
See id.
196
See id. at 11.
197
Rabbi Grunfeld notes that even orthodox Jews are making wills, with the help of orthodox solicitors. GRUNFELD, supra
note 23, at 100.
198
See Hiers, supra note 182, at 147.
199
See Baba Bathra 8:5, THE MISHNAH 377 (Danby transl.).
200
Baba Bathra, 8:6 provides in part: ″If a man died and a testament was found bound to his thigh, this counts as nothing. But
if he [had delivered it and] through it granted title to another, whether of his heirs or of such as were not his heirs, his words
remain valid.″ Baba Bathra 8:6, THE MISHNAH 377.

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gift of property in which the donor may retain the right to a usufruct during life, 201 a
deathbed gift, 202 or a gift made in contemplation of death. 203 The gifting of property to
one who is not an heir is not expressly prohibited. However, the more orthodox view is that
a pious man should not do so. 204

B. Islamic Inheritance Law

Unlike the vague Biblical law, the Qur’anic laws of inheritance are extraordinarily specific.
An Islamic maxim is ″Learn the laws of inheritance, and teach them to the people; for
they are one half of useful knowledge.″ 205

[*164] The Qur’an contains an explicit system for the distribution of a decedent’s estate
206
among family members. 207 The Qur’an specifies certain fractional shares of the estate for
named heirs of the decedent, who include both male and female relatives. 208 The Shi’a
school declares that these specified takers are to be the only takers of the decedent’s intestate
estate (that is, the entire estate is to be shared by these named heirs). 209 The majority
Sunni view, however, is that this new framework is to be superimposed upon the framework
that already existed in pre-Islamic Arabia. 210 The existing framework was [*165] based

201
See PRINCIPLES OF JEWISH LAW, supra note 12, at 453. This gift is called a mattenat bari. See id.
202
See id. This gift is called a mattenat shekhiv me-ra. See id.
203
See id. at 455. This gift, called a mezavveh mehamt mitah, is one made when a person is seriously ill (though not dying),
about to face execution, or about to set out on a caravan or sea voyage. See id.
204
See GRUNFELD, supra note 23, at 16. Baba Bathra 8:5 provides: ″If a man assigned his goods to others and passed over
his sons, what he has done is done, but the Sages have no pleasure in him.″ Baba Bathra 8:5, THE MISHNAH 377.
205
POWERS, supra note 49, at 8; Honarvar, supra note 39, at 380.
206
The estate available for the legal heirs consists of all the assets of the deceased that remain after the satisfaction of funeral
expenses, debts and valid bequests.″ SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 40.
207
This system is spelled out in Sura IV, verses 7, 11, and 12. THE HOLY QUR’AN 70-71.
208
Sura IV, verse 7 states: ″Men shall have a portion of what the parents and the near relatives leave, and women shall have a
portion of what the parents and the near relatives leave, whether there is little or much of it: a stated portion.″ THE HOLY
QUR’AN 70. ″Female heirs suffer from no disability, at least in Sunni law, to succeed to land or real estate. Each heir’s entitlement
is simply expressed in terms of a fractional share and attaches in specie to the various properties which make up the inheritance.″
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 40. Tradition teaches that the Prophet delivered this verse and
other inheritance verses after the wife of a deceased man and her daughters complained to the Prophet that the decedent’s executors
refused to deliver any of his property to her. POWERS, supra note 49, at 11-12, 53-54. Powers notes, however, that ″the
historical accuracy of this representation is highly suspect.″ Id. at 54.
209
See PEARL, supra note 17, at 145. Some of the specified takers in the Shi’a system are given prescribed shares, while
others take the residue. See VERMA, supra note 15, at 483.
210
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 33.

The system of priorities rests basically upon the principles of agnatic succession recognised by the customary tribal
law in pre-Islamic Arabia. . . . [The Qur’an] merely modified the existing customary law by adding thereto as
supernumerary heirs a number of relatives who would normally have had no rights of succession under the customary
law. As a result of this approach the essential character of the developed Sunni law of inheritance is that of an agnatic
system of succession mitigated by the Qur’anic provisions. Male agnate relatives generally remain in a dominant
position, and the consolidated system of priorities covering the members of the inner family as a whole was achieved
by absorbing the new Qur’anic heirs within the framework of the customary rules of priority operating among
male agnates.

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on a patrilineal system that excluded females. 211 Under the Sunni approach, any amounts
that are not distributed to the specified takers according to the Qur’anic formulae will pass to
the male agnatic 212 relatives as residuary takers. 213 The named takers and the male
agnates take under the rule that ″one nearer in degree to the [decedent] excludes one more
remote in degree.″ 214 If there are no surviving blood relatives among the named takers or the
decedent’s male agnatic relatives, all other blood relatives (male and female), known as
″distant kindred,″ are allowed to take. 215 In this case, because a husband or wife is not
considered a blood relative, the husband or wife, if surviving, will take his or her prescribed
share and the distant kindred will take the rest. 216
In the Sunni school, the named takers 217 are: the decedent’s husband; wife; siblings of the
decedent who share the same mother as the decedent; 218 the decedent’s mother; father;
daughter; sisters who have the same parents as the decedent; 219 sisters who share the
same father; 220 [*166] agnatic grandfather; 221 grandmother; 222 and agnatic grand-daughter

Id. Powers takes issue with this theory (which he admits represents ″the general consensus of western scholars on the
subject″). POWERS, supra note 49, at 90. Powers hypothesizes that the succession law introduced by the Prophet was designed
not to complement but rather to replace completely the pre-Islamic laws. See id. at 106. Thus Powers articulates the Shi’a
approach. The Shi’i jurists rejected ″the notion of continuing validity of pre-Islamic practice. There are, of course, political
reasons for the differences [between the Shi’a and the Sunni approaches], not the least in giving priority to daughter’s
children, but the major reason for the disparity must be sought in the continuity of the tribal aristocracy of the Sunnis as
compared with the limited family grouping of the Shi’i.″ PEARL, supra note 17, at 147.
211
See VERMA, supra note 15, at 415.
212
See Makdisi, supra note 61, at 271. ″The term ’agnatic’ characterizes the relationship through male descent or ascent. The
agnatic granddaughter is the daughter of a son or of a son’s son or of a son’s son’s son, etc.; the agnatic grandfather is the father
of the father or of the father’s father or of the father’s father’s father, etc.″ Id. at 271 n.6.
213
See Neil S. Coulson, A Comparison of the Law of Succession in the Islamic and British Legal Systems, 26 AM. J. COMP.
LAW 227, 227-28 (1978); Makdisi, supra note 61, at 279. For example, if a decedent is survived only by his mother and his agnatic
uncle, his mother will take her prescribed one-third share, and the uncle will take the rest as a residuary taker. ″Besides guaranteeing
the surviving spouse a just inheritance, the essential purpose of the Islamic law of succession is to preserve the decedent’s
property within the extended patriarchal family or tribal group, within which the rights of the male members are dominant.″
Coulson, supra at 228. Verma offers a slightly different description of the residuary takers in that he includes male and female
descendants of the decedent, the decedent’s male descendants and the decedent’s father’s male descendants. See VERMA, supra
note 15, at 142.
214
Coulson, supra note 213, at 231. Coulson believes this to be a strict rule of universal application, although he notes that
this strict rule is being abandoned in some countries in favor of a rule that would allow those of more remote degree to take their
parent’s share by representation. See id. at 231. Verma, on the other hand, believes that this rule does not allow a named sharer
who is nearer in blood to exclude a residuary taker. Thus, a daughter (a named taker) excludes a sister (also a named taker) because
the daughter is a closer relation. However, a daughter does not exclude a deceased son’s daughter (a residuary taker) so the
daughter would share the estate with the son’s daughter. See VERMA, supra note 15, at 427-28.
215
VERMA, supra note 15, at 416. See Makdisi, supra note 61, at 282-88 for a thorough discussion of this class of takers.
216
See Makdisi, supra note 61, at 282.
217
See PEARL, supra note 17, at 123-24; SUCCESSION IN THE MUSLIM FAMILY, supra note 109, at 35; Makdisi, supra
note 61, at 274.
218
These are referred to as ″uterine″ siblings. Makdisi, supra note 61, at 274 n.14.
219
These are referred to as ″germane″ sisters. Id. at 274 n.15.
220
These are referred to as ″consanguine″ sisters. Id. at 274 n.16.
221
This is the father’s father or ″father’s father how high soever.″ SUCCESSION IN THE MUSLIM FAMILY, supra note
110, at 35. Thus the category may include a great-grandfather or a great-great grandfather, etc.

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223
of the decedent. 224 Each of these takers has a prescribed share of the estate. 225 The
prescribed share of each of these takers is in turn modified (and may, for some takers, even
be reduced to zero) 226 if the decedent is also survived by an agnatic descendant or, in
some cases, an agnatic ancestor. 227 For example, a surviving husband’s Qur’anic share is
one-half of the estate if there is no agnatic descendant and one-fourth of the estate if there is
an agnatic descendant. 228 Also, the share of a brother or sister of the decedent is zero if
the decedent is survived by an agnatic descendant or a male agnatic ancestor. 229

[*167] Each of the named takers takes his or her prescribed fractional interest as an
undivided interest in each asset of the estate. 230 Some of these named takers--the father,
daughter, agnatic grandfather, agnatic granddaughter, and sisters--may be converted into
residuary takers by the survival of another relative. For example, a daughter is entitled to
one-half of the estate if there is no son, but she shares in the residue as a residuary taker
if the decedent is survived by a son. 231 When the rules pertaining to named takers and
residuary heirs are combined, five heirs of the decedent emerge as heirs ″who are never

222
According to Pearl, the grandmother named in this list must be a ″true″ grandmother--that is, a grandmother whose
connection with the decedent does not occur through a female relative. PEARL, supra note 17, at 123-24. Coulson speaks of the
″grandmother (maternal and paternal (however high soever)),″ which indicates that this category may include great-grandmothers
and great-great-grandmothers, etc. SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 35. See infra at text accompanying
notes 325-30 (discussion of grandmothers’ inheritance rights).
223
This would be the daughter, grand-daughter, great-granddaughter, etc. of a son of the decedent. See PEARL, supra note 17,
at 123-24.
224
See Makdisi, supra note 61, at 274. ″Three of these relatives--the granddaughter, grandfather and grandmother--were not in
fact specifically designated by the Qur’an as legal heirs but Sunni jurisprudence added them to the list . . . through the doctrine of
analogy (qiyas).″ SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 35. Powers notes that these three heirs were
added ″by analogy to the daughter, father, and mother.″ POWERS, supra note 49, at 9 n.24.
225
See id. at tbl. 1.
226
See VERMA, supra note 15, at 426. The share may also be reduced if the combination of prescribed shares is greater than
one. ″To obtain the necessary unity all the basic Qur’anic portions are reduced pro rata.″ SUCCESSION IN THE MUSLIM FAMILY,
supra note 110, at 47. ″The estate of a deceased Muslim may be over- subscribed, in the sense that the sum of the fractional
portions therein to which surviving Qur’anic heirs are entitled may exceed unity. Equally, an estate may be undersubscribed when
the sum of fractional portions of Qur’anic heirs fall short of unity and there is no residuary heir to take the surplus.″ SUCCESSION
IN THE MUSLIM FAMILY, supra note 110, at 46-47.
227
See VERMA, supra note 15, at 426; Makdisi, supra note 61, at 274, tbl. 1.
228
See Makdisi, supra note 61, at 274, tbl. 1. If the descendant is a child, it does not matter whether the child is the child of
the surviving spouse, so long as the child is the child of the deceased spouse. See SUCCESSION IN THE MUSLIM FAMILY, supra
note 110, at 41.
229
See VERMA, supra note 15, at 426; Makdisi, supra note 61, at 274, tbl. 1.
230
The right of a legal heir . . . is a defined quota share in each and every item of property that comprises the estate. Settlement
or composition between the heirs, of whom there will normally be a considerable number, may result in the distribution of
various properties among them in accordance with the value of their quantitative entitlement.″ SUCCESSION IN THE MUSLIM
FAMILY, supra note 110, at 2.
231
See VERMA, supra note 15, at 429. Makdisi’s Table indicates that the mother will take the residue if there is neither a
surviving agnatic descendant or two or more brothers or sisters. See Makdisi, supra note 61 at 275, tbl. 1. However, as will be
noted (infra at text accompanying notes 244-47), the daughter’s share is always one-half of the son’s share.

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232
excluded from succession by any other relative of the [decedent].″ These are the
decedent’s father, mother, son, daughter, and spouse. 233
The Shi’a takers appear in three categories:

Category 1:Category 2:Category 3:234

The takers share the estate with the surviving spouse. Some of these named takers--specifically,
the father, mother, daughter, daughter’s descendants, sisters and their descendants, and
brothers by the same mother and their descendants--are given shares in prescribed amounts.
The rest of the takers are residuary takers. If there are survivors in the first category, they
share the estate to the exclusion of those in categories 2 and 3, and survivors in the second
category preempt the takers named in category 3. Within each category, the closer relatives
exclude the more distant ones. Within the categories, there is little or no distinction between
males and females. Also, the survival of an agnatic descendant or ancestor has no affect
on the prescribed share of a named taker. Thus, the Shi’a system may result in a greater amount
being inherited by female relatives. For example, if a decedent is survived by a grandfather
(father’s father), his wife and his daughter, the Sunni system would divide the estate as
follows: three-eighths to the grandfather, one-eighth to the wife, and one-half to the daughter.
Under the Shi’a system, the wife and daughter, as the closer relatives, would share the
estate equally to the exclusion of the grandfather.

Under Islamic law, an individual is allowed to bequeath up to one-third of his estate. 242
The Sunni system prohibits this one-third from being bequeathed to any family member who
is named in the Qur’anic framework. 243 The Shi’i, on the other hand, allow this amount
to be distributed to family members, thus potentially increasing the share that will pass to
female relatives. 244
In certain circumstances, under the Sunni system, a female is restricted to one-half of what
her male counterpart will take. 245 A son’s [*169] share will be twice that of a daughter. 246

232
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 38.
233
See id.
234
See PEARL, supra note 17, at 146, tbl. 39.
242
Islamic law also allows gifts during life and the establishment of gifts in trust. See Chaudhry, supra note 12, at 548.
243
See LAYISH, supra note 111, at 280. The prohibition against bequeathing more than one-third of the estate to a legal heir
is extended to cover transfers made by the decedent during the last year of life. See Coulson, supra note 213, at 228. ″At the point
in time when the propositus enters his ’death sickness’ the personal debts and the claims of the compulsory heirs attach to the
property. The propositus, therefore, cannot defeat the expectancies of the claimants by donating, or selling below value, parts of
the estate which amount to more than one-third of the net estate. Such a donation, like the bequests [above one-third], is ultra vires
and depends for its efficacy on the consent of the heirs. The limitations imposed upon bequests are thus extended to cover gifts
made by dying persons.″ PEARL, supra note 17, at 120. The prohibition does not appear in the Qur’an but is reputed to have been
uttered by the Prophet during his life. The rule took shape as a legal maxim probably during the eighth-ninth centuries c.e.
POWERS, supra note 49, at 158-59.
244
Coulson notes that some countries have abandoned the Sunni rule in favor of the Shi’a rule. See Coulson, supra note 213,
at 229.
245
Scholars disagree as to exactly what those circumstances are. Chaudhry writes of the ″common misperception, by Muslims
and non-Muslims alike, that a woman will only receive one-half the share that a man receives precisely because she is a
woman, thereby demonstrating the inherent inferiority of Muslim women in Islam.″ Chaudhry, supra note 12, at 516. ″It is only

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A sister’s share will be half that of her brother. 247 One theory provides that this is not
gender discrimination per se, but rather a tangible recognition of the more substantial male
responsibility of supporting his own wife and children. 248
The question in Islamic inheritance law of whether a male always inherits a share that is
twice that of a female of equal class presents an interesting case in which male interpreters
of the Qur’an may have been willing to stretch even the words of the Qur’an itself to favor their
gender. The Qur’anic verse states that ″the male shall have the equal of the portion of two
females . . . .″ 249 Yet a literal reading of the separate verse that specifies heirs’ fractional shares
is not consistent in some cases with the double share requirement. For example, if a
decedent is survived by his wife and parents, the wife should receive one-fourth of his
estate, the mother one-third and the father the remaining five-twelfths. 250 Worrying that the
father does not receive double of what the mother receives, the legal scholars determined
that the mother was not to receive one-third of the estate but rather one-third of what remains
in the estate after the wife receives her share. 251 Under this interpretation, then, the wife
would take one-fourth, the mother would take one-fourth also (one-third of the remaining
three-fourths), and the father would take the remaining one-half of the estate, thus securing his
double portion. 252

[*170] The provision for double shares for males is often pointed to as a source for the
proposition that Islamic law generally favors men over women. It should be noted, however,
that the Qur’anic system may at times result in situations in which female family members
(although not of the same rank) may end up with equal or greater shares of decedent’s estate.
For example, if a wife dies survived by her husband, her daughter and her (the wife’s)
brother, the estate will be distributed as follows: one-fourth to the husband, one-half to the
daughter, one-fourth to her brother. Thus, the spouse and male relative of the wife each receive
half of the amount allocated to the daughter. 253

C. Specific Rules of Inheritance

the daughter or the full sister who receive half of what males of equal status receive, a son or full brother, respectively, if they
are inheriting jointly as Residuaries.″ Id. at 537. Coulson, on the other hand, speaks of the ″double share to the male″ rule as a more
expansive rule that is ″fundamental to Islamic succession and is emphatically asserted in the Qur’an itself. It even applies to
Qur’anic entitlement, so that a surviving husband takes a portion twice as large as that which a surviving wife would take under
similar circumstances.″ Coulson, supra note 213, at 228.
246
See Chaudhry, supra note 12, at 516.
247
See id.
248
See Chaudhry, supra note 12, at 540, 543. Former Prime Minister of Pakistan, Benazir Bhutto, urges that the double share
given to a son be viewed ″in the whole aspect, because it is made abundantly clear that the woman’s share is for the use of the woman
alone. A man gets two-thirds. One third--the equivalent of the woman’s is for his own use. The additional one-third that a man
gets is to provide for his wife and children. This is the obligation on the man. He gets that extra share so the he can provide for
the family, the wife, and the children.″ Bhutto, supra note 115, at 108.
249
Sura IV, verse 11, THE HOLY QUR’AN 48-49.
250
See infra text accompanying notes 316-21 for a description of how these shares are calculated.
251
The drafting of this resolution is described in POWERS, supra note 49, at 57-62.
252
Powers hypothesizes that the original verses should not have been read to extend the right of inheritance to spouses, but
rather to have limited it to blood kindred of the decedent. With this interpretation, the tortured reading of verses to ensure the male
double portion would not have been necessary. See POWERS, supra note 49, at 74-78.
253
See infra text accompanying notes 263, 305-09.

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It is difficult to make the blanket statement that women are better protected under one of
these religious succession systems rather than the other. Both systems clearly favor men over
women. However, as will be seen in the descriptions that follow, the Islamic approach of
guaranteeing intestate shares to certain named female heirs results often in these women having
greater rights than they would have under Jewish law.

1. Husband and Wife

a. Husband’s Right to Wife’s Estate

Jewish Law: Under Jewish law, the traditional rule was that if the wife died before her
husband died, the husband was entitled to receive the wife’s entire estate. 254 This included
any amount that she had brought into the estate as dowry. 255 However, a father was
obliged to ensure that his sons by this deceased wife would inherit her ketubah, 256 along
with their other rightful share of his estate. 257 The unfairness of this broad rule of total
inheritance by the husband, particularly in cases where the spouses had been married only a
brief time, was mitigated over time by several communities. 258Takkanot259 were enacted
that called for the return of the entire dowry to the wife’s family if the wife died childless
within one year of marriage and one-half of the dowry if the wife died childless within two
years. 260

Islamic Law: Unlike Jewish law, Islamic law provides both the husband and the wife with a
definite portion of each other’s estates and then divides the rest of the estate among other
relatives of the deceased spouse. The husband’s share in the wife’s estate is expressly
delineated in the Qur’an. 261 Under the Sunni system, 262 if the wife is survived by one or more
agnatic lineal descendants, the husband is entitled to one-fourth of her estate. 263 If the
wife is not survived by any children or agnatic lineal descendants, the husband takes one-half
of her estate. 264 The remaining estate is then divided, under the Sunni approach, among

254
See PRINCIPLES OF JEWISH LAW, supra note 12, at 379.
255
See REV. DR. M. MIELZINER, THE JEWISH LAW OF MARRIAGE AND DIVORCE IN ANCIENT AND MODERN
TIMES 107 (1987).
256
See supra text accompanying notes 152-62 for a definition of the ketubah.
257
See PRINCIPLES OF JEWISH LAW, supra note 12, at 380.
258
See MIELZINER, supra note 255, at 106; PRINCIPLES OF JEWISH LAW, supra note 12, at 448.
259
See supra text accompanying notes 36-37 for a definition of takkanot.
260
See MIELZINER, supra note 255, at 107; PRINCIPLES OF JEWISH LAW, supra note 12, at 448.
261
Sura IV, verse 12 provides in part as follows: ″And you shall have half of what your wives leave if they have no child, but
if they have a child, then you shall have a fourth of what they leave after (payment of) any bequest that may have bequeathed
or a debt . . . .″ THE HOLY QUR’AN 49.
262
The Shi’a system provides a similar share for the husband. See VERMA, supra note 15, at 484.
263
See Makdisi, supra note 61, at 274, tbl. 1.
264
See id. If the estate is oversubscribed, the surviving spouse’s share may be subject to reduction. However, if the estate is
undersubscribed, the surviving spouse is not allowed to enjoy an increased share. See SUCCESSION IN THE MUSLIM FAMILY,
supra note 110, at 50.

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her agnatic lineal descendants or, if none, the wife’s other relatives. 265 (Her husband is not
deemed to be her ″relative.″) 266 It is important to note, however, that the husband’s share
of the estate is specifically limited by the Qur’an to his prescribed portion after payment of
any legacies or debts. 267
b. Wife’s Right to Husband’s Estate
Jewish Law: The inheritance rights of widows are not described in the Bible. 268 Under the
Jewish law of marriage, the wife is entitled to receive her ketubah269 amount from the
husband’s estate. 270 (Some later takkanot271 limited her right to one-half of the husband’s
estate, even if more was due her.) 272 Until the ketubah amount is paid to her, the wife is entitled
to maintenance and support from her husband’s heirs. 273 Eventually, the law allowed the
husband’s heirs to pay out the wife’s ketubah amount and thus terminate their obligation to
support her. 274
Islamic Law: Under Islamic law, the widow has a right to her deferred mehr275 and also to
her Qur’anic share of her husband’s estate. The prescribed amount is basically one-half of the
amount to which the husband is entitled if the wife were to die first. 276 If the husband
left agnatic lineal descendants, the widow’s share is one-eighth of his estate. 277 Her share
is one-fourth of the estate in the absence of lineal descendants. 278 If there is more than one
widow, however, the widows must share that amount equally among themselves. 279 The
wife, like the husband, will never take more than the prescribed share. 280 Also, as with
husbands, the Qur’an specifically states that the surviving wife’s share is a share only of the
265
Under the Shi’a approach, the remaining portion of the estate is divided among the appropriate named takers. See VERMA,
supra note 15, at 478.
266
Makdisi, supra note 61, at 282.
267
Sura IV, verse 12, THE HOLY QUR’AN 49.
268
Hiers, supra note 182, at 130. However, Hiers points out that some Biblical reference (e.g., the Book of Ruth, 4:3) indicate
some inheritance by wives of their husbands’ property. See id.
269
See supra text accompanying notes 152-62 for a definition of the ketubah.
270
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 295; Kofsky, supra
note 1, at 333; Ariel Rosen-Zvi & Asher Maoz, Principles of Intestate Succession in Israeli Law, 22 ISRAEL LAW REV. 287, 290-91
(1988).
271
See supra text accompanying notes 37-38 for a definition of takkanot.
272
See AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 295; PRINCIPLES
OF JEWISH LAW, supra note 12, at 449.
273
See Kofsky, supra note 1, at 333.
274
See id.
275
See supra text accompanying notes 172-75.
276
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 41. Sura IV, verse 12 proyides in part as follows: ″and
they [wives] shall have a fourth of what you leave if you have no child, but if you have a child, then they shall have the eighth of
what you leave after (payment of) a bequest you may have bequeathed or a debt . . . .″ THE HOLY QUR’AN 49.
277
See Makdisi, supra note 61, at 274, tbl. 1.
278
See id. The Shi’a share for the wife is the same. See VERMA, supra note 15, at 484.
279
See PEARL, supra note 17, at 124; SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 41.
280
See supra note 214.

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net estate. 281 Thus, while the Jewish wife’s support right is not a property right per se, she
may fare better than her Islamic counterpart if the husband’s estate is subject to extensive
debts.
2. Daughters
Jewish Law: Under Jewish law, the daughter of a deceased male is entitled to support from
her father’s estate until the earlier of her marriage or her attainment of the age of majority.
282
This is a lien against her father’s estate, subject only to the priority of the widow’s ketubah.
283
While this rule does not necessarily result in the daughter receiving a share equal to
that of her brothers, in the case of an insolvent estate, it may result in an unmarried minor
daughter receiving something while her brothers receive nothing. 284 The daughter’s right to
maintenance is based in the ketubah of her parents and thus her father cannot make any
deathbed instruction that she not receive it. 285

The sons who inherit their father’s estate are also obligated to give their sisters a dowry
from the estate. 286 However, the father is allowed to give a deathbed or testamentary
instruction that would deprive the daughter of her dowry. 287 The ketubah and the father’s
obligations of support for the widow and the daughters take precedence over the daughter’s
dowry. 288
Direct Biblical references to inheritance by daughters indicate that a daughter may inherit
from her father’s estate, but only if the father is not survived by any sons. 289 As noted above,
the Mishnah explained that the Biblical reference to ″sons″ included not just sons, but the
children of sons. Thus, if a decedent is survived by a daughter and by a son’s daughter, the
son’s daughter will take the entire estate to the exclusion of the daughter. 290 In Chapter
27 of the Book of Numbers, the daughters of Zelophehad asked to share in their father’s estate
since he had died without sons. 291 The Lord told Moses to communicate the following to
the children of Israel: ″If a man die, and have no son, then ye shall cause his inheritance to
281
See supra text accompanying note 267.
282
See PRINCIPLES OF JEWISH LAW, supra note 12, at 379. Kofsky reports the age of majority as age 12. See Kofsky,
supra note 1, at 334.
283
See Kofsky, supra note 1, at 335. See supra text accompanying notes 152-62 for a definition of the ketubah.
284
If a man died and left sons and daughters, and the property was great, the sons inherit and the daughters receive maintenance;
but if the property was small, the daughters receive maintenance and the sons go a-begging.″ Baba Bathra 9:1, THE MISHNAH
378.
285
See PRINCIPLES OF JEWISH LAW, supra note 12, at 449.
286
According to some scholars, a daughter is also entitled to receive a dowry out of her deceased mother’s estate, but this is
disputed by other scholars.″ PRINCIPLES OF JEWISH LAW, supra note 12, at 450.
287
See id.
288
See id.
289
As noted supra at text accompanying notes 186-87, a disagreement developed among scholars as to what happens under
the Biblical instruction if a father is survived by a daughter and the daughter of a son.
290
See supra text accompanying notes 186-87.
291
Hiers points out that, in Chapter 31 of the Book of Genesis, Rachel and Leah seemed to expect that they would inherit
from their father’s estate even though he did have sons. He posits the following explanation: ″Possibly daughters did inherit under
Syrian law, at least if they were older than their brothers. It has been suggested that pursuant to practices attested at Nuzi,

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pass unto his daughter.″ 292 The daughter’s inheritance, however, did not come without a
substantial restriction on her freedom to marry. In a later chapter in the Book of Numbers,
the heads of one of the tribes complained that Zelophehad’s daughters might marry outside the
tribe and ″so will their inheritance be taken away from the inheritance of the tribe of our
fathers.″ 293 Moses allayed their concerns when he conveyed the Lord’s decree that ″every
daughter, that possesseth an inheritance in any tribe of the children of Israel, shall be wife unto
one of the family of the tribe of her father, that the children of Israel may possess every
man the inheritance of his fathers.″ 294 As noted above, later sages determined that this
restriction ″was applicable only to the particular generation to whom the enjoinder was
directed.″ 295
First-born daughters who inherit their father’s estate do not have the same entitlement to a
double share as do first-born sons. 296 Also, daughters who inherit from the father’s estate are
not entitled to maintenance from their father’s estate. 297
Fathers in Ashkenazi 298 communities developed a method by which they could circumvent
the inheritance rules and allot a portion of their estates to their daughters. This was
accomplished through a deed given by the father to the daughter when she married in
which the father agreed to pay her a large sum of money, to be due the hour before he died.
The father would also provide that his estate could [*175] satisfy this debt by providing
the daughter instead with one-half of a son’s share in the estate. 299

Inheritance by children of their mother’s estate is not directly addressed in the Torah, thus
leaving the pertinent rules to be derived by the scholars. The rules that were derived resulted
from a tortured reading of Numbers 36:8. This verse provides that ″any daughter who
inherits a legacy of the tribes of the Children of Israel″ shall marry someone in her father’s
tribe. The sages noted that the use of ″tribes″ in the plural form indicated that a daughter
could inherit from her mother as well as from her father. 300 From this, the sages extrapolated,
first, that the son (as well as the daughter) is also an heir of the mother, and, second, that
Laban had adopted Jacob, and that this relationship is in the background of their property transactions and other dealings. The
women’s complaint that their father, Laban, had been ’using up the money given for us’ (31:15) could refer to their dowry, which
may have been in addition to their expected inheritance.″ Hiers, supra note 182, at 128.
292
Numbers 27:8.
293
Numbers 36:4.
294
Numbers 36:8. One explanation for this requirement is that the daughter’s inheritance was in fact regarded as a dowry. See
AN INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 5. Hiers questions whether the
rule was that ″only unmarried daughters of sonless fathers inherited from their fathers″ and refers to the Book of Tobit 14:12-13,
in which Tobias, rather than his wife, inherited from his wife’s parents. Hiers, supra note 182, at 129.
295
PRINCIPLES OF JEWISH LAW, supra note 12, at 446. Grunfeld finds the unequal treatment of daughters difficult to
reconcile with what he views as the Torah’s insistence on the ″dignity of Jewish womanhood.″ GRUNFELD, supra note 23, at
11. However, he concludes that this apparent anomaly is ″one of the mysteries of the divine law that transcends human
understanding.″ Id. at 14.
296
See PRINCIPLES OF JEWISH LAW, supra note 12, at 447.
297
See id. at 449.
298
The term ″Ashkenazi″ refers to ″Jewish life and settlements in Northwest, Central, and eventually Eastern Europe.″ AN
INTRODUCTION TO THE HISTORY AND SOURCES OF JEWISH LAW, supra note 17, at 241.
299
See PRINCIPLES OF JEWISH LAW, supra note 12, at 450.
300
TALMUD BAVLI, Bava Basra 111a.

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the son takes precedence over the daughter, just as he does in inheriting his father’s estate.
301
Dissenting views were raised, which advocated equal inheritance by the sons and daughters
of their mother’s estate. 302 However, these dissents were quickly silenced, with
accompanying threats of excommunication for those who advocated them. 303 A mishnah
clearly states that daughters ″receive maintenance from the father’s property but not from the
mother’s property.″ 304
Islamic Law: Both the Sunni and the Shi’a systems list the daughter as a named taker with
a prescribed share of the estate. 305 Thus, a daughter will never be excluded from sharing in the
parent’s estate. The amount of the Qur’anic share of a daughter depends upon whether the
deceased parent is survived by sons or other daughters. 306 If the decedent is survived by sons
as well as one or more daughters, the daughters and sons share the residue of the estate
but each daughter takes one-half of a son’s share. 307 If there is no son and the decedent is
survived by only one daughter, she takes one-half of the estate. 308 If there are no sons but more
than one daughter, the surviving daughters share two-thirds of the estate equally among
themselves. 309
The Islamic law treats daughters better than the Jewish law under some circumstances and
worse under others. Under the Jewish system, a daughter is completely excluded from sharing
in her deceased parent’s estate if the parent is also survived by a son or the descendant of
a son. On the other hand, if there is no surviving son or son’s descendant, the daughter takes
the entire estate. Under the Islamic system, the daughter is always guaranteed a portion of
her parent’s estate. The survival of a son will not preempt her, but it will reduce her prescribed
share. The survival of a son’s descendant will not even reduce the daughter’s share. These
comparisons are illustrated in the following table.

Table 1

Decedent survived by daughter (D) and by the relative(s) listed

Jewish Islamic
1. Son (S) S takes all D-1/3; S-2/3
2. Son’s Daughter (SD) SD takes all D-1/2; SD-1/6 (rest to male
relatives)
3. Son, Mother, and Father S takes all D-8/36; S-16/36; M-1/6; F-1/6
4. No Son, Son’s Descendants’ D takes all D-1/2 (rest to male relatives)

301
See id.
302
See id.
303
See id.
304
Baba Bathra 8:4, THE MISHNAH 377.
305
See VERMA, supra note 15, at 482; Makdisi, supra note 61, at 274-75, tbl. 1. Sometimes, the daughter may take as a
residuary taker rather than as a taker of a prescribed share. See id.
306
Sura IV, verse 11 provides in part as follows: ″Allah enjoins you concerning your children: The male shall have the equal
of the portion of two females; then, if they are more than two females, they shall have two-thirds of what the deceased has left, and
if there is one, she shall have the half . . . .″ THE HOLY QUR’AN 49.
307
See VERMA, supra note 15, at 487; Makdisi, supra note 61, at 274-75, tbl.1.
308
See id.
309
See VERMA, supra note 15, at 487.

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Jewish Islamic
Parents
5. Mother, Father D takes all D-1/2; F-1/3; M-1/6
6. Wife, Father D takes all D-1/2; W-1/8; F-9/24
3. Mothers
Jewish Law: Under Jewish law, neither the mother nor the mother’s family are heirs of her deceased child. 310 Thus, if a
decedent dies survived by both parents and not by issue, the father inherits the decedent’s entire estate. The only circumstance
under which a mother may take from a deceased child’s estate would be if the deceased child were a daughter who had
died childless after less than one year of marriage and the community takkanah provided that the daughter’s dowry was to
be returned to her family. 311 This circumstance presupposes also that the daughter’s father is no longer alive.

Islamic Law: Mothers are among those takers who are specified in the Qur’an. 312 If the decedent dies and is not survived
by any children or son’s children, and is survived by only one sibling, if any, the decedent’s mother’s share is one-third
of the estate. 313 If the decedent in this case is survived by two or more siblings, the mother’s share is one-sixth. 314 If the
decedent is survived by one or more children or son’s children, the mother also takes one-sixth of the estate. 315

The Qur’anic share of the decedent’s father is one-sixth of the estate. 316 However, the father is also a residuary taker, so
he ends up taking a greater portion of the estate than the decedent’s mother. 317 For example, if a decedent is survived by both
mother and father and there are no surviving children, agnatic descendants, or siblings of the decedent, the mother takes
her one-third and the father takes his one-sixth share plus the rest of the estate, for a total share of two-thirds. 318 If a decedent
is survived by a spouse as well as the mother and father, the mother’s share is reduced in that the mother’s one-third
share is one-third of the remainder after the spouse has taken his or her share. 319 This results in the mother receiving one-fourth
of the estate if the decedent is survived by a wife and parents and one-sixth of the estate if the decedent is survived by a
husband and parents. 320 In these cases, the father receives one-half and one-third of the estate respectively. The reduction of
the mother’s share in these circumstances ensures that she will always take less than the father. 321

[*178] 4. Other Female Relatives

Jewish Law: Jewish law does not provide specific succession rights for most female relatives of the decedent. As noted
above, the seminal verse in the Book of Numbers establishes a parentelic system of inheritance. This system does not expressly
name female relatives but it may result in the distribution of portions of the estate to them. Under this system, sons and

310
See GRUNFELD, supra note 23, at 10.
311
See supra text accompanying notes 259-60.
312
Sura IV, verse 11 provides in part as follows:

and as for his parents, each of them shall have the sixth of what he has left if he has a child, but if he has no child
and (only) his two parents inherit him, then his mother shall have the third; but if he has brothers, then his mother shall
have the sixth after (the payment of) a bequest you may have bequeathed or a debt . . . .

The Holy Qur’an 49.

313
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 43-44.
314
See VERMA, supra note 15, at 430.
315
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 43-44.
316
See VERMA, supra note 15, at 430.
317
See id.
318
See Makdisi, supra note 61, at 275 n.20.
319
See VERMA, supra note 15, at 439, 443. See supra text accompanying notes 250-52 for a discussion of how this interpretation
evolved.
320
See VERMA, supra note 15, at 443.
321
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 45-46. If the mother’s share was not reduced to being a
share of the residue and the decedent was survived by a husband and parents, the mother would take one-third of the estate
and the father would only take one-sixth. See id.

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sons’ issue are the primary heirs. The issue of the son may be male or female. Even if female, the fact that a child is a
child of the son may cause that child to preempt the rights of a daughter of the decedent. 322 The father and the father’s issue
are next in line after descendants. 323 If there are no surviving issue, father, siblings or siblings’ issue, the next group
includes the grandfather and the grandfather’s issue. There seems to be no distinction between male or female ″issue″ in
these groups. Thus, if the decedent is survived by a nephew and a niece, both the children of the decedent’s only (predeceased)
brother, the nephew and niece would share the estate equally. On the other hand, there may remain an inequality between
takers of the same rank, such as the decedent’s siblings or the decedent’s aunts and uncles. As noted above, the more
conservative interpretation of the parentelic system would still place brothers and their issue ahead of sisters and their
issue, and uncles and their issue ahead of aunts and their issue. 324 Thus, if the decedent were survived by a sister and by
two nieces, one of which was the daughter of a predeceased brother and the other the daughter of a predeceased sister, the
daughter of the brother would take the entire estate to the exclusion of the surviving sister and the predeceased sister’s
daughter. Also, if a decedent were survived only by the decedent’s father’s brother (an uncle) and the decedent’s father’s
sister (an aunt), the uncle would take the estate to the exclusion of the aunt.

It should also be recalled that the decedent’s mother’s family has no place in the scheme of succession. Thus, if the
decedent were survived by the decedent’s father’s sister and the decedent’s mother’s sister, the father’s sister would take
the entire estate. The Jewish succession system does not include any reference to grandmothers.

Islamic Law: In Islamic law, express provision is made for sisters and grandmothers of the decedent and for the decedent’s
agnatic granddaughters (that is, the female issue of a son of the decedent).

A grandmother is allotted a one-sixth share as a substitute for the decedent’s mother. 325 A ″grandmother″ may in fact be a
great-grandmother or an even higher ancestor. 326 However, a grandmother who is closer in relationship to the decedent
will exclude a great-grandmother or other more remote grandmother from taking. 327 If there is more than one grandmother
of the same degree of relationship, they share the allotted amount. 328 In the Sunni system, on the maternal side, the
mother of the mother of the decedent is the ″grandmother.″ Among the various schools of thought in the Sunni system, 329
there is a divergence of opinion as to whether, on the decedent’s paternal side, the ″grandmother″ is determined to be
only those in the line stemming from the father (that is, the father’s mother, the father’s mother’s mother, etc.) or may also
include those in the line stemming from the father’s father. 330

Sisters of the decedent are allocated fractional shares that depend upon whether their relationship to the decedent is due to
them having the same mother (″uterine″), the same father (″consanguine″), or both parents in common (″germane″). 331
A uterine sibling, [*180] either brother or sister, takes a one-sixth share (or they share one-third, if more than one), if the

322
See supra text accompanying notes 186-87.
323
As noted supra at text accompanying notes 191-93, Rabbi Grunfeld’s approach places the decedent’s brothers and brothers’
issue ahead of sisters and sisters’ issue.
324
See supra text accompanying notes 191-93.
325
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 60.
326
See id.
327
See id. at 61-62.
328
See id. at 60.
329
See supra note 61.
330
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 61; Makdisi, supra note 61, at 277 n.32.
331
There is some debate as to what exact amount sisters inherit. Sura IV, verse 12 provides in part as follows:Sura IV, verse
176, on the other hand, provides in part:Professor Makdisi explains that the ″consensus reached in Islam″ was that that ″verse IV,
12 refers to uterines and verse IV, 176 refers to germanes and consanguines.″ Makdisi, supra note 61, at 272-73 n.12; accord
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 65. Professor Makdisi notes, however, that a recent alternative
interpretation applies the 12th verse to testate succession and the other verse to intestate succession. See Makdisi, supra note 61,
at 272-73 n.12. Professor Coulson notes that the Qur’anic provisions relating to siblings are

and if a man or a woman leaves property to be inherited by neither parents nor offspring, and he (or she) has a
brother or a sister, then each of them two shall have the sixth, but if they are more than that, they shall be sharers
in the third (after payment of) any bequest that may have been bequeathed or a debt that does not harm (others) . . .

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decedent is not survived by a child, agnatic grandchild, or male agnatic ancestor. 332 Germane and consanguine sisters of
the decedent are entitled to one-half of the estate if the decedent is not survived by a child, agnatic grandchild, father, male
agnatic ancestor, or full brother. 333 Germane sisters are given precedence over consanguine sisters. 334 Also, the survival
of a consanguine brother will reduce a consanguine sister’s share. 335

The term ″agnatic granddaughter″ includes not just the daughters of the decedent’s sons, but rather any female issue of the
decedent’s son (great-granddaughters, etc.). 336 An agnatic granddaughter may take a share of the decedent’s estate either
as a named taker or as a residuary taker. 337 As a named taker, she will take one-half of the estate (or, if more than one
granddaughter, two-thirds) if the decedent is not survived by any children or closer agnatic issue or by an agnatic grandson
of the same generation. 338 The agnatic granddaughter is entitled to one-sixth of the estate if the decedent is survived by a
daughter, but no son or grandson. 339 The agnatic granddaughter will take as a residuary taker in two circumstances.
First, she will take as a residuary taker if the decedent is survived by a son’s male issue who is [*181] of the same generation
as the granddaughter. Second, she will take as a residuary taker if the decedent is survived by a son’s male issue who is
one or more generations below the granddaughter. 340

V. JEWISH AND ISLAMIC WOMEN’S RIGHTS OF INHERITANCE IN MODERN TIMES

As the foregoing text illustrates, strict adherence to religious law in many cases grants Islamic women greater inheritance
rights than Jewish women (and, in both religions, grants lesser inheritance rights to women than to men). Modern times and
customs, however, have seen a reversal of the advantage that Islamic women had over Jewish women.
.

Sura IV, verse 176, on the other hand, provides in part:

if a man dies (and) he has no son and he has a sister, she shall have half of what he leaves, and he shall be her heir
if she has no son; but if there be two (sisters), they shall have two-thirds of what he leaves; and if there are
brethren, men and women, then the male shall have the like portion of two females . . . .

Professor Makdisi explains that the ″consensus reached in Islam″ was that that ″verse IV, 12 refers to uterines and verse
IV, 176 refers to germanes and consanguines.″ Makdisi, supra note 61, at 272-73 n.12; accord SUCCESSION IN THE
MUSLIM FAMILY, supra note 110, at 65. Professor Makdisi notes, however, that a recent alternative interpretation applies
the 12th verse to testate succession and the other verse to intestate succession. See Makdisi, supra note 61, at 272-73
n.12. Professor Coulson notes that the Qur’anic provisions relating to siblings aresupraaccordsupraSeesupra

as in other aspects of the law . . . only the bare rudiments of the completed system. It was left to the explanatory
decisions of the Prophet and the juristic reasoning of the early authorities to supply the details of the relative priorities
among the different types of collaterals, and, in particular, to define the precise circumstances in which brothers
and sisters would be entitled legal heirs.

SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 65-66.

332
See VERMA, supra note 15, at 433; Makdisi, supra note 61, at 274, tbl. 1. The siblings take nothing if any of the named
relatives survive. See id.
333
See VERMA, supra note 15, at 432.
334
See SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 68.
335
See Makdisi, supra note 61, at 276, tbl. 1.
336
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 55.
337
See VERMA, supra note 15, at 472.
338
See id.
339
See id. The one-sixth share is derived from the collective two-thirds share that would be allotted had there been more than
one daughter. If the decedent is survived by one daughter, she takes one-half of the estate and the agnatic granddaughter takes the
remaining portion of the two-thirds collective share (four-sixths minus the daughter’s three-sixths equals one-sixth). See
SUCCESSION IN THE MUSLIM FAMILY, supra note 110, at 55.
340
See VERMA, supra note 15, at 472.

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In Israel, modern laws and custom have changed the allencompassing role that religion plays in the inheritance rights of
women. In Israel, the secular Succession Law of 1965 341 governs the distribution of property at death. 342 This system protects
surviving spouses (whether male or female) in four ways. First, the Succession Law includes the surviving spouse as a
taker of a portion of the decedent’s estate. 343 Second, the surviving spouse is entitled to ownership of a portion of the deceased
spouse’s property based on the assumption that the spouses acquired property as a community rather than as individuals.
344
Third, the surviving spouse may be entitled to continue residing in or even to inherit absolutely (regardless of a contrary
testamentary disposition) the couple’s home. 345 Fourth, the surviving spouse remains entitled to any property that was
due to pass to him or her under the marriage contract. 346 In addition, the Succession Law of Israel makes no distinction
between male and female heirs. 347

[*182] Even for orthodox Jews who remain faithful to the restrictions of the Book of Numbers rather than to secular law,
the unfairness to women that is inherent in these Biblical restrictions has been recognized in modern times, and mechanisms
for mitigating this inequality have been devised. Those orthodox Jews (including orthodox law-yers) who have chosen not to
write wills that override the laws of the Torah have sought guidance from Biblical scholars as to how to protect the
interests of their wives and daughters. 348 As noted above, a strict adherence to the Biblical text would give priority to
sons over daughters and would preclude a surviving widow from inheriting from her deceased spouse. Furthermore, the
orthodox Jew is cautioned that any attempt to override these proscriptions by will is invalid. 349 Yet Jewish law does include
the mechanism of an inter vivos deed of gift that, if properly drafted and witnessed, may help to equalize inheritance
among (for example) a father’s sons and daughters. This mechanism is recommended and a draft deed of gift provided 350
by the prominent rabbi and scholar Dayan I. Grunfeld, who offers this mechanism as ″a way out of the predicament for
those who want to provide for their wives and daughters without infringing the Jewish Law of Inheritance.″ 351

On the other hand, in modern Islamic countries, the reality of women’s lives often does not reflect their rights to own and
inherit property under religious law. Recent years have seen an upsurge in political domination by groups that are identified
as Islamic extremists. 352 In the name of faithfulness to the religion of the Prophet, 353 these fundamentalist groups transform
government and practice in a way that subordinates women and often results in rendering them vulnerable and powerless
in these societies. 354

341
See generally Rosen-Zvi & Maoz, supra note 270.
342
See id. at 288-89.
343
See id. at 324. The spouse’s portion of the deceased spouse’s estate varies depending upon what other heirs survive. See id.
at 324-25.
344
See id. at 302-03. For spouses who were married before January 1, 1974, the presumption resulted in a 50/50 split of the
marital assets. The surviving spouse’s share belonged to her absolutely and was not subject to the debts of the estate of the deceased
spouse. For spouses married after 1973, a ″balancing of resources″ approach is taken. This results in the surviving spouse’s
share of the communal property being viewed as a debt of the estate. See Rosen-Zvi & Maoz, supra note 270, at 304.
345
See id. at 308-16.
346
See INTRODUCTION TO THE LAW OF ISRAEL 107 (Amos Shapira & Keren C. DeWittArar eds., 1995). However,
these amounts are deducted from any other amount to which the spouse is entitled under the succession laws. See id.
347
See Rosen-Zvi & Maoz, supra note 270, at 323.
348
See GRUNFELD, supra note 23, at 100.
349
See id. at 6.
350
See id. at 108-11.
351
Id. at 101. The deed of gift that he suggests divides the donor’s property equally among his sons and daughters and
provides his wife with an income interest for her life. See id. at 109. The gift remains revocable ″until one hour before my
demise.″ GRUNFELD, supra note 23, at 109.
352
See GOODWIN, supra note 116, at 7-8, 46; Howland, supra note 62, at 306-07; Telesetsky, supra note 135, at 295.
353
One theory is that these extremists are ″emphasizing Koranic passages that reinforce Islam’s patriarchal aspects, while
deemphasizing its clear injunctions giving women equality, justice, and education.″ GOODWIN, supra note 116, at 9.
354
See Howland, supra note 62, at 305-17. An example of this political/religious subordination occurred in Afghanistan in the
mid-1990s, when the Taliban, a military group whose members were trained in Islamic fundamentalists schools, achieved a position

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[*183] Perhaps the primary source of women’s economic vulnerability in these countries is the dependency of women
upon men for their support and maintenance. Islamic law decrees that a woman’s male relatives remain financially responsible
for her even when she is married. 355 In countries that are dominated by Islamic fundamentalists, women are precluded
from establishing any financial independence because they are forbidden to work and are often excluded from public life
altogether. 356 Thus, women are easily coerced by their male relatives, such as fathers and brothers, into turning over to them
any inherited wealth in return for a guarantee of their continued support. This practice has been documented in recent
years in Egypt and on the West Bank and has been described as a phenomenon that occurs ″frequently″ among Muslim
women in Israel. 357 The studies also show that a woman may be discouraged from retaining wealth inherited from her spouse
by the threat of her remaining family members to marry her to another relative in order to keep the inheritance within the
family. 358 The widow’s dower rights have proved also to be compromised in these countries in that fathers, rather than wives,
are repeatedly reported as keeping part of their daughters’ dowries and mothers are often disclaiming these rights in order
to strengthen their relationship with the sons upon whom they became dependent. 359

CONCLUSION

The laws of Judaism and Islam both established inheritance rights for women long before these rights were established in
most Western countries. These rights took the form of support rights (particularly for widows and daughters of the decedent)
and of specified property rights. For married women, the inheritance rights were an extension of the property rights they
gained as a result of the marriage.

The granting of these rights to women by Jewish and Islamic law presaged the rights of modern Western women to inherit
property [*184] and, in some cases, demand support from a decedent’s estate. In an ironic twist of fate, however, the
Western cultures that historically denied women their rights have come close in modern times to achieving sex equality in
this crucial area of the law while, at the same time, a resurgence of fundamentalism in both of the religions, particularly
in Islam, threatens to visit new and even greater inequities on women. The fundamentalists emphasize (and, some argue,
exaggerate) those provisions of each religion that subjugate women. Lost in this modern political process is the historic role
that these religions played in supporting and protecting women’s property and inheritance rights. Thus, the challenge for
women in these religions today is to ensure that this historic role is not forgotten and that it is accurately played out in the
continuing evolution of debate that characterizes the formation of law in both Judaism and Islam.
Copyright (c) 2000 Boston College International & Comparative Law Review
Boston College International and Comparative Law Review

of dominance. See Telesetsky, supra note 135, at 293-97. The Taliban ″have banned women from the work force and education
system, and have mandated certain dress and behavior codes.″ Id. at 296.
355
See Webber, supra note 41, at 1068.
356
See Telesetsky, supra note 135, at 296.
357
See Webber, supra note 41, at 1069-70.
358
See id. at 1071-72.
359
See id. at 1074-76.

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