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| BAHÁ'Í STUDIES REVIEW, Volume 5.1, 1995 || CONTENTS BY VOLUME || CONTENTS BY TITLE || CONTENTS BY AUTHOR || REVIEWS BY TITLE || Some considerations relating to the inheritance laws of the Kitáb-i-Aqdas Sen McGlinn |
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Abstract This paper considers some aspects of the sexual equality of the inheritance laws of the Kitáb-i-Aqdas. Where previous commentators have found that the inheritance laws favour the male heirs, this paper suggests that the laws create a symmetrical equality between distinct male and female lines. It is also argued that the obligation on every believer to write a Will—understood here as a testament of faith—does not necessarily have any implications for the pattern of inheritance. Some reasons why Bahá'í families might choose to apply the inheritance laws of the Aqdas are adduced. Introduction
I do not wish to argue against this approach in principle: undoubtedly an understanding of the historical circumstances can aid our understanding of many of the laws of the Aqdas. But I think there are a number of aspects of the texts of the inheritance laws which have not been adequately considered. For instance, Fazel's argument assumes a link between the writing of a Will and the division of the inheritance, but, as we will see below, the Will which we are required to write might more appropriately be called a "testament": it is a declaration of faith in the one God as revealed in His Manifestation, and does not necessarily have any implications for the division of the estate. In the second place, the laws of the Aqdas may be normative not only on an individual level, but also as guidelines for a state. Just as many states now stipulate the right of a spouse to shared ownership of marital property, the Aqdas pattern of inheritance might be normative in the sense of guiding state laws on the division of marital property. The obligation on each believer to write a Will has no effect on this aspect of the Aqdas law. However these are minor matters. A survey of the literature on this topic shows that it is the question of the treatment of male and female heirs which has interested every commentator. Perhaps the reason Fazel is looking for evidence that the inheritance laws will be irrelevant in the future is that these laws apparently favour the male heirs, particularly the eldest son. Fazel, and now myself, are joining on the end of an ongoing discussion about the equity, or lack of equity, in the treatment of male and female heirs in the Aqdas. Linda and John Walbridge, in a 1986 article on "Bahá'í Laws on the Status of Men," in World Order, were the first commentators writing in English to publish a reading of the inheritance 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:
Whether they do necessarily favour the male heirs is the main question which will be addressed here. 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 to the Aqdas, question 37 (Q37, p. 118), was not available in English until 1992.(4) This paper will take one possible interpretation of Bahá'u'lláh's answer to Q37, and elaborate some implications for the inheritance law as a whole. It 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. No claim is made here that this interpretation of the Aqdas inheritance law is logically inescapable (although it should at least not be illogical). Nor does it claim to bypass the historical work of Fazel and others by a return to the text itself, since text and context cannot so easily be separated. Rather, it is suggested that, of all the possible readings, this one is so beautiful, and the vision of relations between the sexes in possible future societies which it opens up so intriguing, that readers may perhaps be less ready to extrapolate from the social setting of the law's revelation to the conclusion of irrelevancy. Historically speaking, if a Persian nobleman of the late nineteenth century wrote an inheritance code, one would expect it to reflect the sexual attitudes of his time and society. But the social structure I will describe comes 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. This paper will not defend, or even consider, the historical probability of the interpretation it proposes. In the first place, the concept of historical probability has dubious validity when the nobleman who is writing the law claims to receive inspiration from a God who transcends historical and cultural limitations, and in the second place the defence would require a broad biographical account of Bahá'u'lláh's radicalism on other questions (e.g., on the education of girls, rights of workers, democracy, world language and government, Church-State relations etc.), which would make for a very long paper. In fact it is not necessary to show that Bahá'u'lláh foresaw that the response he gave to Q37 could be interpreted as promoting sexual equality. Whatever may have been the intention of their Author, as a matter of practical jurisprudence the laws can be understood and developed along the lines of sexual equality if that is what we want. This implies that I do not believe that the laws of the Aqdas will cause, in a historically deterministic way, the development of a Bahá'í society with particular features. The laws of the Aqdas are rather tools, and a framework, which we can use to build and shape: as interpreters and users we are actively engaged with the range of possibilities which the text allows us to create. |
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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 that the residence and clothing of the deceased father pass to the male not to the female offspring.(5) The Walbridges, in particular, have projected the possible effects of this law in its application within Bahá'í society, but with an assumption (shared by others who have written 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" [Qur'án 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 shared property ownership. Later I will touch very briefly 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 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, its provisions apply, mutatis mutandis [n38], when the deceased is a woman.(6) 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 direct example of its application given in Q55, where the question is "If the deceased be a woman, to whom is the 'wife's' share of the inheritance allotted?" and the answer is "The 'wife's' share of the inheritance is allotted to the husband." This ought already to warn us that Bahá'u'lláh has stepped outside the mould of His Islamic background. Under Islamic law, for each class of inheritors, the males of the class inherit twice as much as the females, thus a son gets twice as much as a daughter, a brother twice as much as a sister, the father twice as much as the mother. In surah 4 verse 12 of the Qur'án, this is applied to the wife or husband of the deceased: "In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth... Their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth." Thus where the Qur'án has a general rule about male and female shares which applies whether the deceased is a man or woman, Bahá'u'lláh stipulates a share which is due to the wife when the deceased is a man, or to the husband when the deceased is a woman. This suggests a pattern of symmetrical equality between the sexes. Another aid to understanding how the mutatis mutandis principle should be applied is the explicit statement from Bahá'u'lláh [Q37] which says, despite the apparently clear text of the Aqdas [K25], that "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, or, if he has died before his father, goes not to the children of the eldest son but rather to the second son, and so forth [n44]. This seems clear enough. Bahá'u'lláh continues:
If the principle of primogeniture is thought to relate in some way to the family home—for instance, because 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, although it is easily divisible, whereas on the female side clothing is equally divided. 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, 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."(7) Since there is no indication that primogeniture applies in the female line, and there exists 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 Q37; the last sentence could be read as saying something like [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 out daughters from inheriting what is the most important class of property for the bulk of the population. That reading is possible, but appears unlikely since there would then have been no need for 'Abdu'l-Bahá and Shoghi Effendi to specify that it is the residence of a deceased man which goes to the eldest son (n44 and Aqdas 155, cited above). I assume therefore 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 her clothes. In that case, one would have to say that, if there are daughters living, this part of the inheritance would certainly 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 Q37 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 assume that the reference is to the whole estate. This 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 the home only when both parents have died. Under the Aqdas inheritance pattern, if a man dies, assuming joint ownership of the family home, the eldest son becomes in effect a partner with his mother in the ownership of the home, while if a woman dies, her daughters inherit her share of the home. This is certainly novel, but it is 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 for a society in which women are expected to learn and practise a trade or profession. Rather than assuming that a widow is helpless, needing a son to take care of her, I read the law as assuming that she is financially independent. 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 emphasising 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 patrilineal 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.(8) 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 Qur'ánic principle: "To men is allotted what they earn, and to women what they earn" [Qur'án 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 that either supports or counter this assumption in the Bahá'í writings. It is simply an argument from analogy. |
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The third class of property I would like to add some remarks about sexual 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 are concerned, 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 property in the city. Because it may be of considerable value, can produce an income or be converted to cash in a way that clothing and the family home cannot, this is the part of the inheritance which could cause disruptive family disputes. Suppose the deceased was a man, and indeed owned valuable investments worth, for convenience, 2,520 thousand. The children get a total of 1,080 thousand, evenly divided between sons and daughters, eldest and younger.(9) 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 thousand to keep her warm. The man's ten brothers get just 21 thousand each.(10) If on the other hand the deceased 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 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 eldest or the youngest of the family, since 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 the 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 sexual equality, but interesting nonetheless. 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 particular point. One can, after all, only expect justice
with 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 moral 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.
We are free to dispose of all our property in our Wills (in contrast to Islamic law, which limits this freedom), 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 Bayán, as summarised in Selections from the Writings of E.G. Browne:
Let each one write his name and what he hath done of good and otherwise from the beginning of the Manifestation of the Matter until the day of its decline: and let his executors preserve it, until the day wherein the Tree of Truth shall be manifest. (Wáhid VIII, chapter 9)(12) 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 Báb'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 society, but if we analyse it as if Bahá'u'lláh was writing here as a social engineer, in the way we would discuss 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. To return to the division of the third class of property, and specifically to sexual inequalities. Another class of inheritors, for the third class of property, deserve to be mentioned: the grandchildren. The Aqdas says:
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Closing remarks This pattern of bilineal inheritance has some other implications as regards the first class of property, personal clothing. There are many societies in which women do own property of symbolic, rather than economic, importance: family heirlooms, tapa mats of great antiquity, the theoretical title to 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. Such interpretations would presumably 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 recognise male and female heirs as two distinct classes. In many societies it is culturally necessary to recognise the differences. It is also psychologically realistic, since women, as women, do have shared interests and bonds.(15) '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."(16) His vision is not of an androgynous age in which masculine and feminine elements have become irrelevant. I promised to mention how the law, as I have interpreted it, would operate 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. In summary, I have no arguments with Fazel's historical research. But where Fazel and 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. |
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|| CONTENTS BY VOLUME || CONTENTS BY TITLE || CONTENTS BY AUTHOR || REVIEWS BY TITLE || || ABS(ESE) HOME PAGE || MEMBERSHIP OF ABS(ESE) || Copyright © 1995, Association for Baha'i Studies (English-Speaking Europe)
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