Some Considerations Relating to the Inheritance Laws of the Kitab-i-Aqdas
First presented at the Irfan Colloquia Session #5
Bahá'í National Center: Wilmette, Illinois, USA
March 31 – April 2, 1995
(see list of papers from #5)
This presentation will suggest some considerations which might be borne in mind when interpreting the inheritance laws. There has been much discussion about the equity, or lack of equity, concerning the way in which male and female heirs are treated in the Kitab-i-Aqdas: Linda and John Walbridge, for instance, inferred some sociological features of a Bahá'í society from its supposed inequalities.1 But reading the text itself I am not at all sure that we find the inequalities there.
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 [p. 155] that the residence and clothing of the deceased father pass to the male, not to the female, offspring.
A lot of analysis has been made about the effects this law would have were it applied in a Bahá'í society, but the assumption appears to be 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 escapes me. 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.
The question then arises: what happens when the deceased is a woman and owns a share of the family property? 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 women. The mutatis mutandis principle ("changing what has to be changed") indicates a direction for interpretations but is hardly explicit: what has to be changed, and how?
There is one explicit statement from Bahá'u'lláh [Q 37] 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 adds "the used clothing of the mother should be divided in equal shares among the daughters, but the remainder of her estate, including property, jewelry, and unused clothing, is to be distributed, in the manner revealed in the Kitáb-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. " [Q 37]
The "remaining property" can comprise 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 principle is that the principal residence passes to the eldest son. So when the deceased is a women, 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 [Q 37] 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].
Perhaps there is no pressing need to take a position on this question. It is at any rate clear that Bahá'u'lláh has provided for a completely different kind of inheritance pattern than that which prevails in the East, or for that matter in the West. In a Western society at present, if one partner dies, the other generally becomes the sole owner of at least the personal residence, so that the children inherit it only when both parents have died. Under Bahá'u'lláh's inheritance pattern, if one partner dies--assuming joint ownership of the family home--The remaining partner becomes in effect a partner with the children, since the eldest son, or the daughters (collectively or eldest), inherit the portion of the home which was owned by the deceased partner. This makes the children a full part of the family, rather than the family having a core (man and woman) and a periphery (children). And such a pattern 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 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 continue as joint guardians of the family hearth. When a woman dies, her daughter(s) take her place. Thus rather than indicating distinct 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 favor 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 is traced, this pattern of inheritance would actually point towards a bilinear society, consisting of two "tribes"--male and female. Inheritance and lineality are broadly dispersed every time the torch is passed from one generation to the next, 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.
1. Linda. and John Walbridge, Baháíí Laws on the Status of Men," World Order 19:1 (Fall 1984/Winter 1984-85) 25-36.
ABSTRACT This paper considers some aspects of the gender equality of the
inheritance laws of the Kitab-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
This paper will look at some considerations which might be borne in mind when
interpreting the inheritance laws of Bahá'u'lláh's Kitab-i-Aqdas, and open up
some interesting possibilities. It will not attempt a systematic presentation
of all the implications of those laws, nor a comparison with the laws of the
Bayan and Qur'an. The focus will be on some aspects of the gender equality of
the inheritance laws, but it will be necessary to begin by saying something
about the significance of the inheritance laws as a whole, particularly in the
light of Seena Fazel's 'Inheritance' in Vol 4. No. 1 of this journal. 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 'may
become irrelevant in the future'. He suggests 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 seems deliberately and
specifically to have added provisions to this law that would lead to its
abandonment." 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, Seena'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 why Seena 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.
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 a 1986 article on 'Bahá'í
Laws on the Status of Men', in World Order Vol. 19 No. 1/2, pp. 25-36, 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.
The Aqdas thus skews the structure of the family slightly to
place its continuity in the male line. In the law of inheritance the
family home passes to the sons ... The assumption behind the division
of an intestate estate seems to be that the eldest son will assume
responsibility for the care of his mother ... [fn: Walbridge and
Walbridge, 1986, pp. 35-6.] ... the share of a surviving spouse is
relatively small. For a widower this would not matter, since the bulk
of the household assets would be assumed to be his. For a widow,
however, the amount inherited is rather small ... It seems likely that
the mother would normally be expected to remain part of the household
of the eldest son, particularly since her home was now his property.
[fn: ibid. p. 28] Responses to their article, by six
different authors, were published in Dialogue magazine in the Summer/Fall issue
of 1987 under the collective title of 'A Question of Gender'. Not every shot
fired in these responses hit home, but it would be fair to say that the
Walbridge's thesis that the inheritance law envisions 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 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. This paper will take one
possible interpretation of Bahá'u'lláh's answer to Q37, and spin out from that
to the 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 Seena 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 gender
relations in possible future societies which it opens up is 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 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. 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 gender 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
gender 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 as users we are actively engaged with the range of
possibilities which the text allows us to create.
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]. [fn: All references
are to the 1992 English translation of the Kitab-i-Aqdas unless otherwise
stated. K25 is paragraph 25 of the main text, n44 is note 44, Q37 is section 37
of the Questions and Answers.] Shoghi Effendi says in the Synopsis [p. 155]
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 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'an 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. 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 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. [fn:
See also n133, which applies the mutatis mutandis principle more broadly. Both
notes are based on an earlier letter of the Universal House of Justice, but, in
the Universal House of Justice's introduction to the Aqdas they state that "it
is apparent from the Guardian's writings that, where Bahá'u'lláh has given a
law as between a man and a woman it applies mutatis mutandis between a woman
and man unless the context makes this impossible." (emphasis added) Thus,
although the jurisprudential technique of reading the laws mutatis mutandis is
based on decisions of the Universal House of Justice and could in principle be
changed as circumstances warrant, to the extent that it is based on
interpretations made by the Guardian it may be regarded as a permanent
principle of Bahá'í jurisprudence.] 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 quite 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'an, 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'an 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 genders. 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:
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:
Deceased man Deceased woman
personal clothing eldest son all daughters equally
(primogeniture)
family home eldest son ? (see discussion below)
(primogeniture)
other property approx 40% equally
among sons and daughters
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, page 56, [fn: Also in The
World Order of Bahá'u'lláh, p. 148.] 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 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 daughters out of inheriting what is the most important class of
property for the bulk of the population. The 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 p. 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 the 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. Which would mean that the 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 to 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 to a society
in which women are expected to learn and practice 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
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. [fn: If, as I have
found most likely, the principle of primogeniture affects only the male line,
then the symmetry does not apply to every detail. However the equality of the
two lines - as will be seen in more detail below - appears to be complete.]
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" [Qur'an 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.
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 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 million. The children get a
total of 1,080 million, evenly divided between sons and daughters, eldest and
younger. [fn: The fact that the property which could produce an income is
divided equally undercuts the argument that the eldest son is expected to
provide for his mother: if he had a special duty in this respect 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. [fn: The figures are taken from the calculations of Shoghi
Effendi, in the Synopsis and Codification of the Aqdas, which are reprinted on
p. 153 of the present edition of the Aqdas.] 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, 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, 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 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.
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 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 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. 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 (which seems to be what
Seena envisions), 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 too. 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 decide together, before the family
has accumulated any substantial wealth, that any wealth in the third class of
property 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 only in Q69, and
is optional. In fact the form of the Will resembles, in general intent, the
declaration cards which are generally used to register membership in the Bahá'í
community. Observance of this law might effectively be increased by redesigning
these cards to serve a dual purpose. We are free to dispose of all our
property in our Wills (in contrast to Quranic 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
Bayan, as summarized in Selections from the Writings of E.G. Browne: [fn: Momen
(ed.) 1987.]
At the time of death [sic] a testamentary book may be written
containing a confession of the Unity [of God and that all creation
and command are His]; a confession of the Divine Point and His Letters
of the Living, and setting forth the Love of Him, and the
manifestations of His Names, and Similitudes, and taking refuge from
that which He loves not...and the preservation of this [testament] is
with his heir that from hand to hand it may come to Him whom God shall
manifest... Wahid V, chapter 13 (p. 370)
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. Wahid VIII, chapter 9
(p. 398)
The Aqdas law thus endorses the law of the Bayan, but the latter has one extra
element, that the Will should be preserved by the heirs. Assuming that the
omission is for the sake of brevity, and does not abrogate the Bayanic law on
this point, [fn: Although Bahá'í jurisprudence is still at an early stage,
there is some reason to think that, where the Aqdas endorses part of a Babi or
Quranic law, the remainder is prima facia also included. For example, the Aqdas
says simply "It is forbidden you to wed your fathers' wives." (K107) The list
of Prohibited Degrees in the Qu'ran (4: 22-24) begins "And marry not women whom
your fathers married", and continues in some detail. It would appear the Aqdas
text may be taken as pointing to the entire list. The notes to the Aqdas state
that "`Abdu'l-Bahá and Shoghi Effendi confirmed that, while stepmothers are the
only category of relatives mentioned in the text, this does not mean that all
other unions within a family are permissible. Bahá'u'lláh states that it
devolves upon the House of Justice to legislate 'concerning the legitimacy or
otherwise of marrying one's relatives' (Q50)."] the Will (or testament) is the
germ of a family history of "that which is praiseworthy" in the actions of each
generation.
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 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
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 (Fazel, 1994: p.
71) as one of the instances in which the Kitab-i-Aqdas appears to favour 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 all be boys, and
the children of the sons might all be 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.
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 recognize male and female heirs as two distinct classes. In
many societies it is culturally necessary to recognize the differences. It is
also psychologically realistic, since women, as women, do have shared
interests and bonds[fn Note that this does not mean that men and women are
different in essence (essentialism) or even that women inherently have a
different balance of character traits (the myth of feminine mystique). These
links are created by the way in which children construct their identities as
they grow, and the results for a particular child will depend on the
characteristics of the parents.]. `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."
(Esslemont, 1987: p. 149). His vision is not of an androgenous 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 Seena's historical research. But where
Seena 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.
REFERENCES
Bahá'u'lláh, The Kitab-i-Aqdas: The Most Holy Book, Haifa, Bahá'í World
Centre 1992
Esslemont, J.E. Bahá'u'lláh and the New Era, Wilmette, Bahá'í
Publishing Trust, 5th rev. ed. 1987
Fazel, Seena 'Inheritance' The Bahá'í Studies Review 1994 Vol. 4 No. 1
Momen, Moojan (ed.) Selections from the Writings of E.G. Browne on the
Babi and Bahá'í Religions, Oxford, George Ronald, 1987
Shoghi Effendi, The Dispensation of Bahá'u'lláh, Wilmette, Illinois,
Bahá'í Publishing Trust, 1934, 1975
Shoghi Effendi, The World Order of Bahá'u'lláh, Wilmette, Illinois,
Bahá'í Publishing Trust, 2nd edition 1974, 1980
Stiles-Maneck, S., Armstrong-Ingram, R.J., Pascoe, J., Baree, J., Ma'ani, B.,
and Lee, A., 'A Question of Gender: a forum on the status of men in
Bahá'í Law', Dialogue, 1987, Vol. 2 No. 1
Walbridge, Linda and John, 'Bahá'í Laws on the Status of Men', World
Order, Vol. 19 (1984/5, but actually published in 1986) No. 1/2, pp.
25-36
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