Inheritance Laws of the Kitab-i-Aqdas
by Sen McGlinn1995-04
This paper will look at some considerations which might be borne in mind when interpreting the inheritance laws of the Aqdas, and open up some interesting possibilities. I am not going to attempt a systematic presentation of all the implications of those laws, nor a comparison with the laws of the Bayan and Koran. But although I want to concentrate on some aspects of the gender equality of the inheritance laws, I should say something about the significance of the inheritance laws as a whole, before too many people have left the room because they already know that inheritance laws are irrelevant. There are scholars, very good scholars in fact, who argue that these laws have no significance, that they are a superseded relic of a particular period in the Faith's history, now applicable only in cases of intestacy. This point of view is well argued in Seena Fazel's paper on Inheritance (now published, in the Bahá'í Studies Review vol 4 no 1, but at the time I prepared this I had only the email version which was posted on Talisman. My comments relate thus to the earlier version).
Seena considers that the fact that Bahá'u'lláh specifically states in the Aqdas that every Bahá'í is obliged to leave a will, and does not suggest or advise that the intestacy pattern should be used as a model, means that these laws, like the first versions of the obligatory prayers and the provision allowing a man to marry two wives, have been superseded by the process of evolution of the Aqdas itself. And he has found a letter from Shoghi Effendi, in Dawn of a New Day p. 77, which supports this. The inheritance law of the Aqdas states that non-Bahá'í relatives do not inherit. But Shoghi Effendi, in a letter written on his behalf, has said that, "it is always possible for a Bahá'í to provide for his non-Bahá'í wife, children or relatives by leaving a will. AND IT IS ONLY FAIR THAT HE SHOULD DO SO." In other words, Shoghi Effendi is saying that, at least in such a case, we should specifically NOT use these laws as norms or guidelines in drawing up our wills. And if everyone does draw up a will, the laws of intestacy will become irrelevant. Or at least, irrelevant to individuals. Seena does not consider that they could still be guidelines for a Bahá'í state in drawing up its laws of inheritance, and thus normative at another level.
Seena has also done some good research on the reasons for the exclusion of non-Bahá'í heirs, in the context of the legal situation in which mixed Muslim-Bahá'í or Babi-Bahá'í families found themselves around 1873. He concludes by suggesting that "the laws of inheritance were given to address a specific and temporary need of believers living in Muslim countries at the end of the nineteenth century." And he adds "It would therefore be unusual if the laws did not take into account the patrilineal patterns of those societies. But Bahá'u'lláh deliberately and specifically added provisions to this law that would lead to its abandonment." And this is the rub. The reason why Seena, and many others, WANT to argue in this direction, is that the inheritance laws apparently favour the male heirs, particularly the eldest son, and that is unpalatable. Seena, and now myself, are joining on the end of an ongoing discussion about the equity, or lack of equity, in the way in which male and female heirs are treated in the Aqdas: Linda and John Walbridge, in an article on 'Bahá'í Laws on the Status of Men', in *World Order* Vol. 19, were the first in the west to publish a reading that made some sense of the laws. They inferred some sociological features of a Bahá'í society, notably a mildly patrilineal pattern, from the supposed inequalities, and tried to find some reasons why such a pattern might be desirable for society and for women. Responses to their article, by a number of authors, were published in the late lamented *Dialogue* magazine in the Summer/Fall issue of 1987. Not every shell fired in these responses hit home, but it would be fair to say that the Walbridge's thesis of a patrilineal pattern received a devastating broadside. But none of the responses suggested a better way of understanding these laws, and all operated on the same premise, that the laws favour male heirs. Whether they do necessarily favour the male heirs is the question I have tackled. I will argue that the laws allow more room for interpretation, and for the broad application of the *mutatis mutandis* principle, than has previously been recognized, largely because a key text in the Questions and Answers, question 37, was not available until the publication of the Aqdas in 1992. What I am going to do is take one possible interpretation of Bahá'u'lláh's answer to question 37, and spin out from that to the implications for the inheritance law as a whole. I will also address some other aspects of that law which have been said to treat female heirs unequally, and show that they do not. When we put this together, the Aqdas inheritance law becomes something rather strange and beautiful, and very radical in its social implications. I hope you like it.
I have already asked you to bracket out any beliefs you may already have about the irrelevance of the inheritance laws. I will also have to ask you to suspend judgement about the historical probability of this interpretation, at least until we have finished playing with it. Historically speaking, if a thrice-married Persian nobleman of the late 19th century wrote an inheritance code, one would expect it to reflect the gender attitudes of his time and society. The structure I will describe comes, sociologically speaking, from another world, in which men and women are equal not only in the eyes of God, but also in practice in society: but then, equal in a rather novel way. I'm not going to deal with the problem of historical improbability in any detail here. In the first place, the concept of historical probability has dubious validity when the nobleman who is writing the law code claims to receive inspiration from a God who transcends historical and cultural limitations, and in the second place the criticism could only be dealt with, if we are to use normal scholarly methods, by a broad biographical account of Bahá'u'lláh's radicalism on other questions (e.g., on the education of girls, rights of workers, world language and government, Church- State relations etc). In fact it is not necessary to show that Bahá'u'lláh foresaw that the response he gave to Question 37 could be interpreted as promoting gender equality. And I for one do not believe that the laws of the Aqdas will result in a historically deterministic way in a Bahá'í society with particular features. Whatever may have been the intention of their Author, what I am saying is that, as a matter of practical jurisprudence, the laws can be understood and developed along the lines of gender equality IF THAT IS WHAT WE WANT.
2. WHEN THE DECEASED IS A WOMAN
The inheritance laws of the Aqdas are written with the assumption that the deceased is a man. Thus Bahá'u'lláh explicitly says that the residence and personal clothing of the deceased [go] to the male, not female, offspring [K25]. 'Abdu'l-Bahá interpreted this as meaning that the residence and personal clothing of a deceased MAN remain in the male line [n44]. Shoghi Effendi says in the Synopsis [p155] that the residence and clothing of the deceased FATHER pass to the male not to the female offspring. The Walbridges, in particular, have projected the effects this law could have were it applied in a Bahá'í society, but with an assumption (shared, incidentally, by everyone else I've read on the topic), that the pattern of property ownership in a Bahá'í society would be similar to that in Middle Eastern societies - in which the man or father is generally the absolute legal owner of the family home, if indeed it is owned. Why this pattern should be projected onto a Bahá'í society is not clear. Even Islamic law had formally permitted women to retain their earnings as their own property: "to men is allotted what they earn, and to women what they earn" - [4:32]. In a society in which both boys and girls are educated in a trade or profession, and everyone is expected to work, it does not seem plausible that men would retain their present overwhelming preponderance of property ownership. Thus even if the civil law does not specify the joint ownership of marital property, one would expect that it would frequently happen that the wife would own a share of, or even all of, the family home. For simplicity's sake I will assume below that the family wishing to apply the law has 50/50 property ownership. I will touch very briefly later on the effects of the law in societies in which men hold all economic properties, or in which women hold some classes of property which are of symbolic importance. Supposing 50/50, or shared, property ownership, the question then arises: how is a woman's estate distributed if the laws of the Aqdas are to be applied? According to the notes to the Aqdas, though the law is formulated with the presumption that the deceased is a man, it provisions apply, *mutatis mutandis* [n38], when the deceased is a woman. The *mutatis mutandis* principle: "changing what has to be changed", indicates a direction for interpretation but is hardly explicit: what has to be changed, and how? There is one explicit statement from Bahá'u'lláh [Q37] which says that (despite the apparently clear text of the Aqdas [K25]), "the personal clothing of the mother should be divided in equal shares among the daughters." This is in contrast to the clothing of a man, which goes to the eldest son if he is still alive, and if not, goes not to the children of the eldest son but rather to the second son, and so forth [n44]. This seems clear enough. In the Questions and answers, Bahá'u'lláh continues:
The used clothing of the mother should be divided in equal shares among the daughters, but the remainder of her estate, including property, jewellery, and unused clothing, is to be distributed, in the manner revealed in the Kitab-i-Aqdas, to all her heirs. If however, the deceased hath left no daughters, her estate in its entirety must be divided in the manner designated for men in the holy Text. [Q37]
The 'remaining property' could include all or part of the family home, and other property. To consider the family home first, what is "the manner revealed in the Aqdas" when the deceased is a woman? When the deceased is a man, 'the manner revealed in the Aqdas' is that the principal residence passes to the eldest son. So when the deceased is a woman, would the residence pass to the eldest daughter, or, following the example of the personal clothes, would it be equally divided amongst the daughters? If she should have no daughters at all, at least, it would clearly go to the sons and be distributed in the manner designated for men in the Holy Text - thus to the eldest son if he is still alive, then the second son [n44]. The situation can be shown in a table:
If you consider that the principle of primogeniture relates in some way to the family home - for instance, that it is desirable for practical reasons that the ownership of a home should not be too widely divided - then, extrapolating across the row, one would conclude by analogy that when a woman dies her principal residence, or share in the ownership of the family home, would pass to her eldest daughter, and then to the second daughter and so forth. The difficulty with this reading is that primogeniture on the male side applies also to personal clothing, which is easily divisible. It seems likely, therefore, that primogeniture is a principle which attaches to the male line in general, and not just to the family home. In fact it applies in at least one other case: prophethood. In *The Dispensation of Bahá'u'lláh*, page 56, Shoghi Effendi cites `Abdu'l- Bahá as writing that "the eldest son hath been given extraordinary distinctions. Even the station of prophethood hath been his birthright". Since there is no indication that primogeniture applies in the female line, and a specific counter-example in the case of personal clothing, I would argue that, when a woman dies, her principal residence or share in the family home should be divided equally among the daughters. That is, I am applying an analogy down the female column, rather than across the 'personal residence' row.
There is another way of reading the answer to Question 37: you could read the last sentence as saying [If the deceased woman has left no daughters, her clothing also should be divided in the manner designated for men]. In that case the empty cell would be filled in with 'eldest son, primogeniture', and we are back to the situation which previous commentators have assumed, and also to a society in which women do not own property to the extent that men do, since that would rule daughters out of inheriting what is the most important class of property for the bulk of the population. So let us assume for the moment that the conditional phrase 'if however, the deceased hath left no daughters,' relates quite literally to 'her estate in its entirety', and not just to the clothes. In that case, one would have to say that, if there *are* daughters living, this part of the inheritance would *not* go to the eldest son, because in that case it would make no difference for the distribution of the estate whether or not there were daughters. In other words, the text from Question and Answers no. 37 shows that the distribution either of the clothing alone, or of the whole estate, is in some way different when there are no daughters, and I am going to assume that the reference is to the whole estate. Which would mean that either the eldest daughter or the daughters collectively inherit their mother's share of the family home.
This is completely different from the kinds of inheritance patterns prevailing in either East or West. In a Western society at present, if one partner dies, the other partner generally becomes the sole owner of at least the personal residence, so that the children inherit that only when both parents have died. Under this inheritance pattern, if a man dies, assuming joint ownership of the family home, the eldest son becomes in effect a partner to his mother in the ownership of the home, and if a woman dies, her daughters inherit her share of the home. This strikes me as different, but not unfair. It makes the children a full part of the family, rather than having a core (man+woman) and a periphery (children). And it is appropriate to a society in which women are expected to learn and practice a trade or profession. Rather than assuming that a widow is helpless and needs a son to take care of her, as I read the law it is assuming that she is able to take care of herself. The significance of this may be primarily symbolic rather than economic. The family home is a symbol of the unity and continuity of the family, and this provision that the children inherit at the death of either parent, rather than when both parents have died, means that the family home is not left half-tenanted, as it were: when a man dies the eldest son in some respects takes his place, and the male and female principles (yin and yang, if you like) continue as joint guardians of the family hearth. When a woman dies, her daughter or daughters take her place. Thus rather than indicating distinct (and patriarchal) social roles for men and women, the inheritance law could be interpreted as emphasizing the need for the union and harmony of these two fundamental forces. The Walbridges argued that the Bahá'í laws of inheritance favour men over women, in order to establish family responsibility as a male obligation, and so ordain a 'mildly patrilinear family'. Supposing one accepts the link between inheritance (specifically, inheritance of the family home and personal clothing) and how descent and identity are traced, this pattern of inheritance would actually point towards a bilinear society, consisting of two `lines' - male and female - with symmetrical equality between them. Inheritance and lineality are broadly dispersed every time the torch is passed from one generation to another, but a certain primacy and privilege as regards the most symbolic possessions is reserved for the sons of a man and the daughters of a woman. Thus the Quranic principle: "To men is allotted what they earn, and to women what they earn" [Quran 4:32] is extended from generation to generation. Following this principle, one would assume that the shares in the third class of property which are assigned to the father and mother when the deceased is a man (with the father getting 330 shares and the mother 270) would be reversed when the deceased is a woman, but I have found nothing to either support or counter this assumption in the writings. It is simply an argument from analogy.
3. THE THIRD CLASS OF PROPERTY
I would like to add some remarks about gender equality in the distribution of the third class of property, i.e., all that remains after the personal residence and clothing have been subtracted. So far as the children go, it makes no difference at this point whether it is the father or mother who has died, and the eldest children inherit equally with the younger children. The property in the third class may not be much, but may be the deceased's business, or farm, or skyscraper on Wall Street. Because it may be of considerable value, can produce an income, and can be converted to cash in a way that clothing and the family home cannot, this is the part of the inheritance which could cause some really nasty family squabbles. Suppose the deceased was a man, and indeed owned a skyscraper on Wall Street worth 2,520 million. The children get 1,080 million, evenly divided between sons and daughters, eldest and younger. The fact that the property which could produce an income is divided equally rather undercuts the argument that the oldest son is expected to provide for his mother - if that were so he would surely require a larger share of the income-generating property.
The distribution of the remaining shares is very interesting, particularly as regards the brothers and sisters of the deceased. In the case above, the man's only sister gets 150 million to keep her warm. The man's ten brothers get just 21 million each [p153]. If on the other hand a man had one brother and 10 sisters, the proportions are roughly reversed (210 for the brother, 15 for each of the sisters). This does slightly favour the male heirs, as a group, over the females as a group. The Aqdas says "to the brothers, five parts or three hundred shares; to the sisters, four parts or two hundred and forty shares" [K26], but the outcome for individuals is random. It depends on how many brothers we have if we are boys, how many sisters we have if we are girls, and of course on how wealthy our siblings are and whether we are the oldest or the youngest of the family - younger sons and daughters are more likely to inherit from their siblings than older children. Once again we can see that the inheritance law does not systematically favour male heirs, though the slight difference between brothers and sisters of the deceased may have some significance. It does treat male and female heirs as distinct groups.
The way in which this class of property is divided has led me to two reflections - deviations in fact from the topic of gender equality, but interesting nonetheless.
3.1) The first reflection is that this division is random, rather than equitable. This may be precisely the point. One tends to assume that the function of an inheritance law is to ensure the just distribution of wealth, bearing in mind other goals such as the need to avoid excessive subdivision of agricultural land (primogeniture) or excessive accumulation of wealth (inheritance taxes). But the fact that 35% of the third class of wealth under the Aqdas system is distributed in this random way may indicate that justice was not a significant consideration in Bahá'u'lláh's mind at this point. One can, after all, only expect justice in respect to rights. The wealth that we have a 'right' to, that should be 'fair', is what we earn ourselves. Relations between the workers and employers, for instance, should emphatically be based on justice. But inheritance is chance - we don't have any RIGHT to inherit at all. If we have no claim on unearned wealth, then the inheritance law does not have to be fair. You might say that `justice' would be if any excess wealth beyond what was required for the continuity of the family were to be sold, and the proceeds given to the poor.
It could also be that no law, however designed, can ensure justice in particular inheritance cases, since every family is different. Perhaps justice is an important feature of inheritance, but can only be achieved by individuals making wills which are just. But if this were applied as a general pattern, effectively rendering the inheritance laws of the Aqdas redundant at an individual level, it would have the disadvantage of making the potential heirs dependent on the good opinion of those holding the wealth in the family. Where the family wealth is considerable, this puts the children in the position of having to compete for the esteem of their parents and older siblings, at the expense of the dignity of all concerned. Of course this is the normal situation in the West. There have been a good many soap opera plots spun out of it, and real life dramas in plenty. There is much to be said in favour of a system under which one must accept that one's portion is determined by lot and can be improved only by adding one's own earnings to it. So while every Bahá'í should make a will, and may determine how his or her estate should be divided, in an all-Bahá'í family it would in many cases be best, for family unity and the spiritual development of all concerned, to announce from the outset that the excess wealth will be distributed according to the lot of the Aqdas. It should be clear why non-Bahá'í heirs could not be expected to accept such a distribution. The primary purpose of the individual's Will would then be to provide a testimony of faith and perhaps a document of family history and continuity. As the Aqdas says:
Unto everyone hath been enjoined the writing of a will. The testator should head this document with the adornment of the Most Great Name, bear witness therein unto the oneness of God in the Dayspring of His Revelation, and make mention, as he may wish, of that which is praiseworthy, so that it may be a testimony for him in the kingdoms of Revelation and Creation and a treasure with his Lord, the Supreme Protector, the Faithful. (K109)
There is no mention here of distributing property - that comes in Q69. We are free to dispose of all our property in our wills (in contrast to Quranic law, which permits Muslims to dispose of only one third of their estates as they see fit, the remaining two thirds being distributed in a fixed system), but we do not *have* to do so. Thus it could be argued that the reason why making a will is a personal obligation is not because we should all think responsibly about how our estates are to be distributed. It may in fact be analogous to the obligatory prayer. The Aqdas law on wills resembles the law of the Persian Bayan, as summarized in a passage in *Selections from the Writings of E.G. Brown*:
The confession of faith of the dead man, and his belief in the Divine Point and the Letters of the Living, with a declaration of his love for them, and an account of his actions, shall be written and preserved by his heirs till the coming of Him whom God shall manifest.
If we add the Bayanic element, that the Will should be preserved by the heirs, the will would become a family history of 'that which is praiseworthy' in the actions of each generation.
3.2) The second reflection arising from the treatment of the heirs to the third class of property is that the details of the inheritance law may have an aesthetic rather than practical rationale. Nine parts for children, eight parts for the wife (or husband), seven parts to the father, six parts to the mother, five to the brothers, four to the sisters, three to the teachers. The system is easy to remember, and elegant. The proportions which are actually inherited are changed because Bahá'u'lláh says "We heard the clamour of the children as yet unborn, We doubled their share and decreased those of the rest" [K20]. If the precise proportions were what was important, Bahá'u'lláh could have said: ["We have allotted 108 shares to the children; to the wife, 39 shares, to the father, 33 shares, to the mother, 27 shares, to the brothers 21 shares, to the sisters, 15 shares, and to the teacher 9 shares"]. It might have been a more direct way of saying the same thing, but it lacks the elegance of the Bab's scheme: so Bahá'u'lláh retained the elegance and made the modification in a footnote, so to speak. No doubt the distribution system, if it is applied in practice, would have some effects on the structure of families and of society, but if we analyze it as if Bahá'u'lláh was writing here as a social engineer, in the way we would discuss, say, the social visions of the political parties which determine their positions on inheritance taxes, we may be imposing something completely foreign to Bahá'u'lláh's concerns onto the text. Of course many of Bahá'u'lláh's other laws and principles will reshape society, and are obviously intended to do so.
4. CLOSING REMARKS
To return to the division of the inheritance, and specifically to gender inequalities. Another class of inheritors, for the third class of property, deserve to be mentioned: the grandchildren. The Aqdas says:
Should the son of the deceased have passed away in the days of his father and have left children, they will inherit their father's share, as prescribed in the Book of God. [K26]
Bahá'u'lláh was asked "What is to be done if the daughter hath died during the lifetime of her father?" He replied "her share of the inheritance should be distributed among the seven categories of heirs according to the ordinance of the Book" [Q54]. This means that she does not pass her right to inherit from her father on, to her children, whereas when a son dies his share of his father's inheritance passes to his children. Seena cites this as one of the instances in which the Kitab-i-Aqdas favours men over women. But, while this is unexpected, it does not in fact favour male heirs over females, since the children of the daughters might be all boys, and the children of the sons might be all girls. Rather, it has the effect of limiting the spread of wealth. Under the customs usual in the West, a child stands to inherit from 4 grandparents, but to share that inheritance with a potentially large number of siblings and cousins. Under the Aqdas system, a child stands to inherit from its own siblings, its parents, and, if its mother dies before the maternal grandparents, from the parents of its father only. Wealth will be marginally more concentrated, and inequalities of wealth slightly less rapidly dispersed as the generations go by, under the Aqdas system. I doubt however that such social effects were a consideration in the design of the law. It seems to me to be another reflection of the pattern we have seen, that daughters have their closest links to, and inherit primarily from, their mothers. By analogy, I assume that if Bahá'u'lláh had been asked "What is to be done if the son has died during the lifetime of his mother?" the answer would have been to redistribute his share among the other seven categories of heirs. Once again I have found nothing to support or counter this: it is purely an argument from analogy.
Before I stop, I would like to revert briefly to the first class of property, personal clothing. There are quite a few societies in which women can own property of symbolic, rather than economic, importance: family heirlooms, tapa mats of great antiquity, land on a sacred mountain, and so forth. If the 'personal clothing' could be interpreted broadly to apply to property of symbolic importance or sentimental value, the law which provides for the eldest son to inherit the father's clothing, and for the daughters to inherit their mother's clothing, could be used to enable these possessions to be kept in the male or female lines where custom demands it, and so help to ensure the continuity of these cultures. I would assume that such interpretations would be the concern of the National Spiritual Assembly. This is one small example of the ongoing significance of these laws, and why it is important that they recognize male and female heirs as two distinct classes. In many societies it is culturally necessary to recognize the differences. Without wanting to revive the myth of the feminine mystique, it is also psychologically realistic, since women, as women, do have shared interests and bonds. `Abdu'l-Bahá has been cited as saying that "the new age will be an age less masculine and more permeated with the feminine ideals, or, to speak more exactly, will be an age in which the masculine and feminine elements of civilization will be more evenly balanced." (Women, page 369 of the compilation of compilations). His vision is not of an androgenous age in which masculine and feminine elements have become irrelevant! I also promised to mention how the law, as I have interpreted it, would work out in a society in which the men do own all the economic property. The answer I am afraid is that this inheritance law will tend to perpetuate the inequality, with some moderating effect since daughters inherit the third class of property equally with sons. But if there was a society in which women owned all the property, this law would also perpetuate, but soften, that inequality. It is not the law of the Aqdas which is unequal, but the society. And that is our problem. Thus, where previous commentators have found, or assumed, that the inheritance laws favour the male heirs, and have then sought for explanations which justify the inequality, in my reading the male heirs are not generally favoured. And if we read Q37 as I have suggested, male heirs are not even favoured as regards the inheritance of the family home. Rather, there is a systematic principle of symmetrical equality between distinct male and female lines. As I said at the outset, something strange, and rather beautiful.
The Obligatory Prayer (salat)
There is no law more basic to religion, in Islam or in the Bahá'í Faith, than the law of prayer. It is the first law commanded in the Aqdas and was clearly fundamental to Bahá'u'lláh's notions of religion.
Yet, within five years of the revelation of this verse, Bahá'u'lláh had revealed three different obligatory prayers, the ones which Bahá'ís use today. The reasons for the abandonment of the original nine-rak'ah prayer are not clear. In the Questions and Answers, Bahá'u'lláh says: "Some years ago a number of the ordinances of the Kitab-i-Aqdas including that Obligatory Prayer [the original one] were, for reasons of wisdom, recorded separa with other sacred writings, for the purposes of preservation and protection. Later these three Obligatory Prayers [the present ones] were revealed." The notes to the Aqdas indicate that the nine-rak'ah prayer "was not released to the believers in [Bahá'u'lláh's] lifetime, having been superseded by the three Obligatory Prayers now in use. Shortly after the Ascension of Bahá'u'lláh, the text of this prayer, along with a number of other Tablets, was stolen by Muhammad-'Ali, the Arch-breaker of His Covenant."13 However, this senario seems highly unlikely, at least with regard to the theft of the text, in light of Bahá'u'lláh's statement that the text had been "sent away" for safekeeping and was not in his possession in 'Akka. Therefore, while Muhammad-'Ali's theft of a large number of Bahá'u'lláh's original Tablets is well known, it seems probable that the text of the Obligatory Prayer was not among them.14 Nor does the unavailability of the Tablet explain why Bahá'u'lláh did not simply reveal the text of the prayer again. On a number of occasions he did, in fact, re-reveal some passages of his revelation without recourse to the original Tablets concerned. We might presume that he could have done so with the original obligatory prayer, as well.
One is left with the impression, given these facts, that Bahá'u'lláh did not find it important that the original prayer be adhered to--even though it had been enjoined in the Most Holy Book. Three other Obligatory Prayers were revealed a few years later, and the believers were left free to choose among them to satisfy the general principle of salat, daily obligatory prayer.15 Question 63 of the Questions and Answers reflects the confusion over this matter that must have been common among Bahá'ís after the revelation of the "Tablet of Obligatory Prayers."16 Further discussion of this matter must, no doubt, await further research. But, it is striking that even in this first and most basic of laws in the Kitab-i Aqdas there has been radical development a nd transformation. The text of the Holy Book here appears to possess a fluidity and provisional quality which is unexpected, especially in view of Muslim ideas about the Qur'an.
A similar fluidity is found in the development of the Bahá'í inheritance laws through time. Here again, it would appear that the most radical change in the intent of the law has been accomplished by the time Bahá'u'lláh's Questions and Answers are revealed. First, it should be noted that the laws of inheritance in Islam present a fixed listing of heirs to the deceased who are alotted a certain percentage of property based on gender and relationship. There is no area of discression here. The estate is divided by Muslim clerics in accord with the provisions of the law. The only question to be raised is whether or not all of the estate has been accounted for, and whether or not the judge (qadi) has been honest. At first glance, the laws of the Kitab-i Aqdas would seem to present the Bahá'í s with a similar system. The need for such laws of inheritance, as an alternative to Muslim law or Babi law, must have been urgent for the Bahá'ís of Iran. Bahá'u'lláh indicates that he found it necessary to reveal laws in this regard as early as the Adrianople period, when the Bahá'í community had bearly begun to exist.17 Bahá'u'lláh reveals laws which modify the categories of inheritance revealed by the Bab and found in the Persian Bayan. At this point, we simply have a modified Muslim system of inheritance which offers little or no discression to the living to divide their possessions among their heirs. This understanding is clearly reflected in Question 69 of the Questions and Answers which inquires of Bahá'u'lláh whether a person has any right to will a part of his estate to charity. The question reads:
May a person, in drawing up his will, assign some portion of his property--beyond that which is devoted to payment of Huququ'llah and the settlement of debts--to works of charity, or is he entitled to do no more than allocate a certain sum to cover funeral and burial expenses, so that the rest of his estate will be distributed in the manner fixed by God among the designated categories of heirs?18To which Bahá'u'lláh gives the following astounding reply:
A person hath full jurisdiction over his property. If he is able to discharge the Huququ'llah, and is free of debt, then all that is recorded in his will, and any declaration or avowal it containeth, shall be acceptable. God, verily, hath permitted him to deal with that which He hath bestowed upon him in whatever manner he may desire.19
This answer, of course, has the effect of abrogating the entire law of inheritance which is elaborated in some detail in the Aqdas and the Questions and answers. At most, the detailed exposition of heirs is left as a residual category to be applied only in cases of intestacy. But, coupled with the command that every believer is obliged to write a will found at verse 109 of the Most Holy Book, even this residual category should, in the future, disappear entirely.20 Again, one is left with the impression that the real issue here is one of a just distribution of property, and not a fixed set of categories. Indeed, the further development of the law, as interpreted by Shoghi Effendi, seems to point in that direction. But, a full exploration of that development is beyond the scope of this paper.21 But again, there is the most radical development and transformation of the original law here. The unexpected fluidity of the law is instructive.
The Law of Monogamy
The law of the Kitab-i Aqdas which permits marriage to two wives (simultaneously) has likewise undergone development, in a trajectory which has resulted in the requirement of monogamy which is binding upon all believers. Again we find the same unexpected fluidity of the laws of the Aqdas which a rigid and literalist approach cannot explain. Permission for polygyny is explicitly given in the Kitab-i Aqdas, though Bahá'u'lláh follows this provision of the law with a clear admonition to monogamy:
God hath prescribed matrimony unto you. Beware that ye take not unto yourselves more wives than two. Whoso contenteth himself with a single partner from among the maidservants of God, both he and she shall live in tranquillity.22
At the time that the Kitab-i Aqdas was revealed, this particular text was taken at face value--as permission for marriage to two wives, with strong advice in favor of monogamy. In fact, early Bahá'í men--both those resident in the Holy Land and those in Iran--not uncommonly took second wives during Bahá'u'lláh's lifetime and afterwards. In the notes to the current English edition of the Kitab-i Aqdas, the editors are at pains to explain the historic development of this law. Note 86 reads as follows:
While the text of the Kitab-i-Aqdas appears to permit bigamy, Bahá'u'lláh counsels that tranquillity and contentment derive from monogamy. In another Tablet, He underlines the importance of the individual's acting in such a way as to "bring comfort to himself and to his partner". 'Abdu'l-Bahá, the authorized Interpreter of the Bahá'í Writings, states that in the text of the Aqdas monogamy is in effect enjoined. He elaborates this theme in a number of Tablets, including the following:
Know thou that polygamy is not permitted under the law of God, for contentment with one wife hath been clearly stipulated. Taking a second wife is made dependent upon equity and justice being upheld between the two wives, under all conditions. However, observance of justice and equity towards two wives is utterly impossible. The fact that bigamy has been made dependent upon an impossible condition is clear proof of its absolute prohibition. Therefore it is not permissible for a man to have more than one wife.23
However, although this is a passage which reflects the current Bahá'í position on the matter, there are other statements from 'Abdu'l-Bahá which also bear on m onogamy and in which the question is much more ambiguous. For example:
You asked about polygamy. According to the text (nass) of the Divine Book the right of having two wives is lawful and legal (ja'iz). This was never (abadan) prohibited, but it is legitimate and allowed (halal wa mubah). You should therefore not be unhappy, but take justice into your consideration so that you may be as just as possible. What has been said was that since justice is very difficult [to achieve], therefore tranquillity [calls for] one wife. But in your case, you should not be unhappy.24
Now in this case, the Tablet appears to have been sent from 'Abdu'l-Bahá to a Bahá'í man who was already married to two women, which we have noted was not uncommon. Therefore, this provision may refer to a special case. It is still a provision of Bahá'í law that a man may remain married to more than one wife if he contracts the marriages in ignorance of the law, or before becoming a believer. However, 'Abdu'l- Bahá ap pears to take the position here that bigamy is "lawful and legal." Another statement from 'Abdu'l-Bahá which needs to be examined is the following:
Concerning bigamy [the number of wives], this has been promulgated, and no one must abrogate it (masusast nasikhi nadarad). 'Abdu'l-Bahá has not abrogated this law. These are false accusations and lies (muftariyat-i rufaqast) [spread by] the friends [i.e., Covenant- breakers?]. What I have said is that He [Bahá'u'lláh] has made bigamy bound on a precondition. As long as someone does not attain certitude regarding the capability to practice justice and his heart is not at rest that he can practice justice, he should not be intent upon a second marriage. But if he should be sure and attain certitude that he would practice justice on all levels [and conditions] (dar jami'-i maratib), then a second marriage is lawful. Just as has been the case in the Holy Land (Ardi-i Maqsud): the Bahá'í friends wished to marry a second wife, accepting this pre- condition, and this Servant [i.e., 'Abdu'l-Bahá] never refrained [from giving permission], but insisted that justice should be considered, and justice actually means here self-restraint (daraji-i imtina'). But they said that they will practice justice and wished to marry a second wife. Such false accusations [concerning 'Abdu'l-Bahá's prohibition of bigamy] are the slanderous whisperings (zamzamih) of those who wish to spread doubts [in people's hearts]. And to what degree they already succeed in making matters ambiguous! [Our] purpose was to state that bigamy without justice is not lawful and that justice is very difficult [to achieve].25
What makes all of these quotations from 'Abdu'l-Bahá so difficult to interpret at this stage is that we have no information concerning the dates they were written or the circumstances which they address. Certainly more research is called for. But I would suggest that 'Abdu'l-Bahá gradually moved from a position that bigamy was permitted by Bahá' i law to a position that it was not, since it had been conditioned on justice--which is an impossible condition. The curious thing about 'Abdu'l-Bahá's argument here is that justice is not mentioned as a condition for polygyny in the Aqdas itself. Even the advice for monogamy is justified as a means to tranquillity, not to justice. It is actually in the Qur'an that we find marriage to more than one wife conditioned on justice:
And if ye fear that ye will not deal fairly by the orphans, marry of the women, who seem good to you, two or three or four; and if ye fear that ye cannot do justice [to so many] then one [only] . . .26
In one Tablet, 'Abdu'l-Bahá explicitly makes the connection between the quranic requirement of justice and the law of monogamy:
In the Qur'an the word has been revealed "and if ye fear that ye cannot do justice [to so many] then one [only] . . .', indicating that in the presence of God the acceptable judgment is monogamy.27
The context of this issue as it arose in the Bahá'í community during 'Abdu'l-Bahá's ministry is, of course, Islamic reformism. Precisely the argument that 'Abdu'l-Bahá was making was also being made by Muslim modernists at the same time, and in the same place. In 1900, Qasim Amin published The Liberation of Women (Tahrir al-Mar'ah) in Cairo, which caused an enormous stir. Essentially, Amin and his circle of modernists argued that the verse in the Qur'an which permitted up to four wives had been made dependent on the husband doing justice to multiple wives. Since this was impossible (especially in the twentieth century), the law of the Qur'an actually require monogamy, at least in a modern context.28 'Abdu'l-Bahá's argument with regard to the Kitab-i Aqdas having conditioned bigamy on an impossible condition is, in form and in content, indistinguishable from the Muslim modernist argument and probably dates from around the same time. It appears that the beloved Master borrowed this controversial Islamic modernist argum ent to interpret the the law of the Bahá'u'lláh in such a way as to enjoin monogamy on all believers. Even so, he insisted (perhaps only at first) that marriage to two wives was lawful. Yet, decades later the Guardian of the Faith would write that the Aqdas "prescribes monogamy." The Bahá'í law of marriage had progressed from permiting two wives, while recommending only one, to a position forbidding polygamy.29 Again, we have a subtantial change in one of the most fundamental laws of the Bahá'í revelation. Again we face an unexpected flexibility and development in the law itself, one that is incompatible with a rigid, literalist approach to the text.
Perhaps it is too early to draw any conclusions from the preliminary information that is gathered in this very tentative paper. However, that will not stop me from trying, of course. It would appear to me that any conceptualization of the Kitab-i Aqdas which would see the book as establishing a fixed and elaborate set of laws and requirements is misplaced. Even in the most central issues that the book addresses--prayer, inheritance, and marriage--there has been a radical development in Bahá'í law. While the Aqdas provided an initial framework in which these matters could be address, Bahá'u'lláh during his own lifetime modified and abrogated provisions of the text over time. This process continued through the interpretations of 'Abdu'l-Bahá and Shoghi Effendi, and is certainly still under way through the on-going legislation of the Universal House of Justice. Nor do I believe that it is possible that such a process can ever have an end. Since Bahá'u'lláh has not revealed a "mere code of laws," but has rather revealed a "Choice Wine" intended for the intoxication of humanity. Perhaps this "Wine" can be understood as the ethical and moral principles that will guide humankind through the next hundreds of years, and not as a rigid and unchanging set of laws that regulate the details of human life.
2 Ekbal, "Kitab-i-Aqdas: Redating is Beginnings," unpublished paper.
3 Bahá'u'lláh, The Kitab-i-Aqdas: The Most Holy Book (Haifa: Bahá'í World Centre, 1992) K98, pp. 55-56. It seems to me to be significant that at this point in the book, Bahá'u'lláh is still referring to the composition as a "Tablet."
4 John Walbridge, personal communication via Talisman (e-mail Bahá'í discussion group).
5 Again, the dsignation "Books and Tablets" would seem to indicate a composition that has not yet been formed into a specific Book of Laws.
6 As I understand, Mark Hellaby has prepared such a history for the Universal House of Justice. If it is available for the information of Bahá'í scholars, it would be most useful to obtain a copy.
7 Opium is explicitly forbidden twice in our current text of the Kitab-i Aqdas, at K155 and K190.
8 Juan Cole has informed me that he has in his possession a photocopy of an 1884 ms. of the Aqdas, which is in the British Library. It does not have the final verse forbidding opium in it.
9 Bahá'u'lláh, Tablets of Bahá'u'lláh (Haifa: Bahá'í World Centre, 1978) p. 128. Indeed, on the basis of this passage, it seems to be that one might reasonably argue that the eighth Ishraq might simply be added to the text of the Aqdas itself as verses 191-193.
10 Shoghi Effendi, God Passes By (Wilmette, Ill.: Bahá'í Publishing Trust, 1944) p. 216.
11 That is, five times a day, as is obligatory in Islam.
12 Bahá'u'lláh, Kitab-i-Aqdas, K6. The note attached to this verse (Note #4) in the current English edition of the Kitab-i Aqdas explains that "the Obligatory Prayer originally enjoined by Bahá'u'lláh upon His followers consisted of nine rak'ahs. The precise nature of this prayer and the specific instructions for its recitation are unknown, as the prayer has been lost." (p. 167)
13 Note #9, p. 169.
14 It is, of course, possible that the Tablets which had been "sent away" had been sent back to Bahá'u'lláh by the time of his ascension, but there is no indication of this.
15 Cf. Questions and Answers, Q65, p. 126
16 Bahá'u'lláh, The Kitab-i-Aqdas, Q63, p. 125.
17 Bahá'u'lláh, The Kitab-i-Aqdas, Q100, p. 136-37.
18 Ibid., Q69, p. 127.
20 For a further elucidation of this argument, see Seena Fazel, "The Inheritance Laws of the Kitab-i-Aqdas." unpublished paper delivered at the Fourth Arjmand Conference on Scripture, Nijmegen, Netherlands, 1994; a version of this paper appears as a "Sounding" in The Bahá'í Studies Review, vol. 4 (1994) no. 1. See also Anthony Lee's response to Linda and John Walbridge's "Bahá'í Laws and the Status of Men" (in World Order, vol. 19 [1984-85] no. 1 & 2, pp. 25-36) found in dialogue, vol. 2 (1987) no. 1, pp. 32-34.21 There are two letters in particular in which the Guardian has indicated that
1) the inheritance laws of the Aqdas should not be taken as a guide for writing one's personal will, at least in the case of non-Bahá'í relatives (who otherwise would be disinherited), and 2) that these same laws point in the general direction of a wide distribution of an estate to various heirs. (Shoghi Effendi, The Dawn of a New Day [New Delhi: Bahá'í Publishing Trust, n.d. (1970)] p. 77; and . . . )
22 Bahá'u'lláh, Kitab-i-Aqdas, K63, p. 41.
23 In Bahá'u'lláh, Kitab-i-Aqdas, note 89, pp. 205-206.
24 From Amr va Khalq 4:173. I am grateful to Sen McGlinn for providing me (via Talisman) with the quotations from 'Abdu'l-Bahá found in Amr va Khalq which follow. These are provisional translations which, as I understand, were made by Dr. Kamran Ekbal.
25 Amr va Khalq 4:175-76.
26 Qur'an 4:3
27 Amr va Khalq 174f.
28 I am grateful to Juan Cole for this information.
29 Shoghi Effendi, God Passes By (Wilmette, Ill.: Bahá'í Publishing Trust, 1944) p. 214. Actually, it appears that the Guardian's position on this question was more complicated than that. It is reported that he explained to the Bahá'ís in Iran that bigamy was against the administrative regulations of the Faith, not a violation of divine law. But, a full exploration of this matter is beyond the scope of this paper.