Definitions
- 1. Patrilineal or agnatic (borrowed from Roman law), i. e. the members of a descent group are only related through males (through the line of the father, paternal grandfather, paternal great-grandfather etc.).
- 2. Matrilineal or uterine, i. e. the members of the descent group are only related through females (through the line of the mother or sister, maternal grand mother or grandaunt etc.).
- 3. Cognatic, i. e. members of the descent group are related to each other by both male and female links (mother and father, maternal and paternal grandpar ents etc.).
It is well known that Twelver Shiʿite legal doctrine entertains several fundamental ideas, which stand in sharp contrast to the Sunnite system as a whole and cannot be explained merely by a divergent theological approach to legal matters. On the divergences between the two systems see overview in Coulson 1964, 109‒119. One of the distinctive features of Shiʿite jurisprudence is the acceptance of the so-called mutʿa, the temporary marriage concluded for an exactly defined period of time. This type of marriage is not allowed by the Sunnites and has even been designated as prostitution (see Denffer 1978 and Ende 1980). Time-limited matrimony was practiced on a wide scale in Zoroastrian-Sasanian law and was most probably the original model upon which Shiʿite temporary marriage was later formed, see especially (Macuch 1985 and 2006). According to Coulson (Coulson 1964, 113‒119 and Coulson 1971), whose extensive work on Islamic succession I will be mainly following in this overview, it is prominently the Twelver Shiʿite law of inheritance that attracts attention as the “supremely distinctive feature” of the whole legal system in comparison with Sunni law (Coulson 1964, 113). It seems that the Sunnite law of inheritance evolved as an amalgam of two basic legal elements: (1) the customary law of pre-Islamic Arabia and (2) new Islamic standards specified in the Qurʾān. In the patriarchal and patri lineal pre-Islamic Arabian tribe women played a subordinate role and descent from a common ancestor was exclusively defined through male links. Thus only the male agnate relatives, the ʿaṣaba, were entitled to inherit, whereas all the females, even the wives and daughters of the deceased, as well as all other non-agnate relatives were completely excluded from succession.
Prophet introduced a new category of heirs by establishing the right of inheritance between the spouses (husband and wife) and by including close female blood relatives (the mother, the daughter, the sisters) as well as certain other non-agnate relatives of the deceased (such as the uterine brother) in the group of beneficiaries. Although these new Qurʾānic heirs, called ahl (or aṣḥāb) al-farāʾiḍ (“persons entitled to prescribed portions”), now had a legal claim to fixed fractional shares (farāʾiḍ) of the deceased’s estate, the old tribal system of inheritance by male agnates remained intact in Sunnī law. Muslim jurists of the formative period maintained the older prescriptions by superimposing the new heirs upon the pre-Islamic customary system of succession: the male agnates remained entitled to inheritance, but only after the relatives named in the Qurʾān had taken their allotted shares. Thus the Sunnite law of inheritance recognizes two distinct groups of legal beneficiaries: the ahl al-farāʾiḍ, or Qurʾānic heirs, on the one hand, and the ʿaṣaba, or male agnates of the deceased on the other, who alone succeed to the residue of the estate after the former have received their pre scribed portions. In the unusual case that no blood relative of these two catego ries should survive, a third group of heirs, consisting of other female and cognate relatives of the deceased, may inherit (Coulson 1971, 29‒30). Coulson divides these three groups of relatives into two categories, the “inner family”, encompassing the Qurʾānic heirs and the male agnates, and the “outer” family, consisting of all other relatives who are only called to succession in the absence of blood relatives of the inner family.
In sharp contrast to the system outlined here very briefly the Twelver Shiʿite law of inheritance assigns no distinctive position to agnate relatives. This explicit rejection of the prime criterion of agnatic relationship is a striking divergence from the Sunnī law of inheritance and is adequately illustrated by the famous quotation attributed to the sixth Shiʿite Imam Jaʿfar al-Ṣādiq (d. 765), the alleged founder of the Jaʿfarite, or Shiʿite school of law, who dismissed the claims of the agnates with the words “Dust in the teeth of the ʿaṣaba” (i. e. the male agnates receive nothing more than a mouthful of dust) (Coulson 1964, 113). The sole standard accepted in Twelver Shiʿite law is that of “relationship” (qarāba) with the deceased, the nature and quality of which is determined by the further criteria of class, degree and strength of blood. With the exception of the spouse relict, who always takes his or her Qurʾānic share and stands outside the system of priorities, all blood rel atives of the deceased are divided into three classes: (1) Lineal descendants (sons and daughters; grandchildren) and parents; (2) Brothers and sisters with their issue and grandparents; (3) Uncles and aunts and their issue. Members of the first class completely exclude those of a lower class and entitlement depends solely upon the position of the claimant heir in this order. Although the same rules men tioned above are applied to the Qurʾānic heirs and a male takes twice the share of a female relative of the same class and degree (according to Sure 4,11), the system differs fundamentally from that of Sunnī law by giving no special place to the male agnates. Thus not only a male member, but also a female member of the first class, a daughter, granddaughter or mother, excludes an agnatic brother or nephew, belonging to the lower classes, from succession; male agnates of a lower class take nothing in competition with females belonging to a higher class (Coulson 1971, 109f).
This is not only a completely different concept, but also a far simpler one than the complex Sunnī model based on the claims of the ʿaṣaba, described by Coulson picturesquely as a troublesome “Gordon knot” being “severed, at one clean stroke” by the Shiʿite system.
To sum up, the Sunnite and Twelver Shiʿite systems reflect fundamentally different ideas of descent and family, which cannot be explained merely in the context of the radical political conflict between these two religious groups or their divergent theological ideas of Islam. Coulson is certainly right in describ ing the Sunnī law of succession as an amalgam of Qurʾānic rules and ancient custom in pre-Islamic Arabia, but his attempt to derive the Shiʿite system solely from Qurʾānic provisions, excluding any criteria derived from pre-Islamic legal practice, is not convincing (Coulson 1964, 117‒119). In the meantime we even have definitive proof that Sasanian law continued to be practised in certain regions of Iran well after the Muslim conquest of Iran. Original legal documents written in the Pahlavi cursive script from the region of Tabarestān, south of the Caspian Sea, have emerged demonstrating irrefutably that Sasanian law was still in force in this region in the eighth century. We are not informed on the provenance of the Tabarestān texts, which were introduced to the public by Phillip Gignoux and Rika Gyselen in 2012 (Gignoux 2012; Gyselen 2012a and 2012b), since the documents belong to a private owner, who made them available for study, but does not wish to be revealed (Gignoux 2012, 30). The documents do not yield their information easily due to the well-known difficulties of deciphering the Pahlavi cursive script as well as the use of legal terminology and will still have to be studied intensely despite preliminary editions by Gignoux 2012 and 2014. There can, however, be no doubt that these are original records of legal cases based on Sasanian jurisprudence, using the ambiguous Pahlavi cursive script and a large range of legal formulae known to a large extent from Middle Persian juridical literature.
Thus in the Zoroastrian system of succession children of both genders were entitled to inheritance and not only sons, but also daughters and wives in the pādixšāy status as well as sisters had the right to an individual portion of the family estate. But why should women be given these privileges in a patrilineal society, which conceded the right to replace the head of a family or descent group only to a male? Should we not rather expect a concept similar to the one in pre-Is lamic Arabian customary law, restricting the right of inheritance to male agnates? Let us recall that usually in patrilineal systems the women of a lineage, daughters and sisters, are not “useful” for purposes of reproduction and continuity of their natal lineage, since they join the descent groups of their husbands after marriage and their children hence count as members of the husband’s lineage. Although this is also the rule for exogamous alliances in the Sasanian system, the law of succession nevertheless differs fundamentally from that of other patrilineal com munities. To put it shortly: the females of a lineage did not become “useless” to their own descent group as far as reproduction is concerned because of three reasons:
(1) the lack of an incest taboo, restricting endogamy between siblings and between the generations (marriages between siblings, between mother and son as well as father and daughter were not only allowed, but regarded as espe cially meritorious religious acts) (Macuch 2010); (2) the possibility of contracting a time-limited marriage, allowing women to conceive for various men in different phases of their lives;26 and (3) the development of elaborate laws engaging the women (wives, daughters, sisters) of a lineage to reproduce for the head of a household if he died sonless. The general term employed in Sasanian law for “successor”, yōhē pasčaēta, lit. “who (succeeds) him afterwards”, taken from an unknown Avestan context, is used of both male and female descendants, but Sasanian jurists in fact differ entiated between two forms of succession: (1) direct succession by a legitimate son (dādestān-pus) and (2) intermediary succession by a legitimate daughter (dādestān-duxt). If the paterfamilias at his demise left only a daughter (or several daughters), but no son, then this daughter (or the eldest one if there were several) was obliged to function as “intermediary successor” (called ayōgēn)27 of the father with the obligation to produce a male successor.
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