More on the Law of Inheritance

By Anjum Altaf

Picking up on the speculation about the causes of poverty of Indian Muslims, I did some more reading on the subject. The bottom line is that the variations in the laws of inheritance matter in very interesting ways.

Let me outline some of basic contours here and hope we can discuss the details in the comments.

Where the principal form of property was land, a law favoring equal division amongst all heirs would lead to fragmented holdings while a law decreeing transfer to one heir only would avoid fragmentation.

The same would apply to other immovable property – for example, if there were two heirs to a house with neither having sufficient funds to buy out the other, there would no option but to sell the property and divide the cash. Family wealth would rarely accumulate into corporate wealth with the growth of big business houses.

This was the principal difference between England and France. As a result, the former had landed gentry with big estates while the latter was a society of peasant proprietors. The same difference existed between Japan and China.

Let us go into a bit more detail. When the law of inheritance is based on ‘primogeniture,’ the inheritor is the eldest son (this is changing to eliminate gender discrimination). This was the case in England and Japan (which deliberately changed over to this practice at a certain point in time). This was also the old Hindu practice where the position of the eldest son was very important both for religious and secular functions.

Note that primogeniture did not exist in Islam presumably because land was not the principal form of property in its domain. Rather, as was mentioned in the earlier post, it was animal stocks that were both divisible and reproductive assets.

There is one further twist to primogeniture – the nature of the obligation of the inheritor to the other siblings. In England, all other heirs were disinherited, i.e., they were not legally entitled to anything from the inheritor. This forced younger offspring of the aristocracy to go into the professions – clergy, sciences, trades, military, entrepreneurship, etc. Many accounts attribute the spurt of innovations preceding the Industrial Revolution to this peculiarity of the English law of inheritance.

A point of interest: Almost all the Founding Fathers of the United States were related to younger offspring of the English aristocracy that had migrated to Virginia to begin new lives after being disinherited.

Now to an interesting point: Hinduism, at that time, also followed the practice of primogeniture but the eldest son had the social obligation to take care of the upkeep of all other siblings out of the proceeds of the estate. The one key result was that there was much less innovation in Hindu society compared to the English.

Moving forward:  With the development of the economy, the principal form of family wealth changes from land to divisible assets (like stocks and bonds). If so, the economic implications of primogeniture as the law of inheritance decline in significance.

Of course, where land was never the form of property primogeniture was less important to begin with. This is what makes Dr. GM Mekhri’s observation so ironic. Islam in India ran into a form of property that was not matched to its law of inheritance and it was unable to adjust to the change (except for the sub-sects mentioned by Dr. Mekhri).

The story does not end here because the law of inheritance has political as well as economic implications. Primogeniture brings a very neat closure to the thorny issue of political succession quite irrespective of the fact whether it is considered fair or not.

Thus, one finds that problems of political succession were markedly few in the English monarchy and in the old Hindu kingdoms. By contrast, the Mughal Empire was a case study in problems caused by the absence of any rule to guarantee an acceptable succession – one heir had literally to physically eliminate all others. But the Mughal Empire was not unique – the Ottoman Empire had a similar history. In fact, the absence of primogeniture meant that Islam, from its earliest days, never really had a mechanism to ensure orderly transfers of political power.

This issue was compounded by the fact that Muslim monarchs could have more than one lawful wife in addition to the concubines that almost all other monarchs in other societies also had. With more than one lawful wife, additional conflict was set up amongst heirs born of different wives – some in favor, some out of favor at any given time. As a result there were never ending court intrigues with factions lining up behind different potential heirs.

This is a fascinating topic that has many more dimensions that can be explored. Let me end the post with the practical implications that can be seen in Pakistan, an underdeveloped economy where land still remains an important form of property and an underdeveloped polity where constitutional rules still remain unenforced.

Pakistan is plagued by inheritance disputes amongst its citizens and succession disputes amongst its rulers. The cost to the growth of the economy and the stability of society is phenomenal.

A discussion of the laws of inheritance has helped us cover a lot of ground.

 

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8 Responses to “More on the Law of Inheritance”

  1. Hasan Abdullah Says:

    I am sorry, but I am not very comfortable with the subject, “causes of poverty of Indian Muslims”, as I understand that to understand a societal phenomenon, the categorization of a country’s people based on ‘religion’ is not quite appropriate.

    Notwithstanding the apparent all-pervasiveness, religion, at best, could be one of the determinants, and not the sole criterion for understanding any important societal phenomenon, which needs to be studied in evolution, as a consequence of interaction of several concrete facets of the society.

    To fine-tune the strategy to remove poverty in India, perhaps no less than religion, region and caste, and the economic status and educational background would have to be taken into account.

    Education would have to be accorded very high priority if the ‘poverty’ – ‘mental’ that is perhaps more dreadful than the economic one – is to be tackled; and may be reformist tactics involving mass campaigns focusing on the health, shelter and education of the masses would pave the way for the revolutionary transformation of the society. And, that would involve the betterment of the Indian society as a whole – the ‘Indian Muslims’ not excluded!

  2. SouthAsian Says:

    Hasan, This problem is arising because you and I are focused on different issues.

    I am not trying to propose solutions for removing poverty in India in general or of any group in particular.

    I am trying to make the point that different rules can have different consequences. Therefore we must pay attention to the rules we adopt to govern ourselves or guide our societies.

    The example of a rule I chose to make this argument was the rule of inheritance which is different in different societies and religions.

    In my post I said that it was Dr. Mekhri’s hypothesis that the Islamic law of inheritance when applied in India might have contributed to the impoverishment of Indian Muslims. This may or may not be correct.

    If our objective is to propose a solution to the poverty of Indian Muslims today, we would not focus on this law of inheritance because it would not be relevant. Probably so few Indian Muslims own land that even if it were possible to change the law, it would make no difference.

    I agree with you that poverty might be better addressed without reference to religion or caste. But note that the Indian state has made a different choice which relies on affirmative action related to caste. Hence the delineation of SCs and OBCs in the Constitution.

    But as I mentioned this is not the subject of these posts. The topic under discussion is whether the choice of rules makes a difference. Another example we have discussed is the rule governing political succession where it seems clear that variation in consequences is very significant. I doubt if there were any other examples of the kind of political struggles that marked political succession during the Mughal Empire because the Mughals had no rule at all.

    I hope this removes the misunderstanding.

  3. Hasan Abdullah Says:

    South Asian says that “I am trying to make the point that different rules can have different consequences. Therefore we must pay attention to the rules we adopt to govern ourselves or guide our societies.”

    That is fine. But the rules are also a product of the material basis of the society. For instance, the rule of ‘democracy’ in India and that of ‘army’ in Pakistan reflect the relative power of different socio-economic classes in the two countries, and have little, if any, relation to the ‘religions’ of the majority of the population in the two countries.

    I think that those of us living in the sub-continent, need to pay attention to the grassroots and, to the extent possible, participate in societal campaigns that would involve masses as active agents for societal causes that have direct and immediate bearing on their life; and education, food, productive employment, health and shelter appear to top such an agenda.

    Moreover, with regard to ‘rules’, I would prefer to focus on the larger canvas – the evolution of society, from the ‘commune’ to the ‘globalised village’. I am not for ‘deterministic’ assessment of evolution and feel that a discussion on the historical evolution would be rewarding. In my view, in the long run, the world ‘perhaps’ evolves in accordance with the laws of societal development, and to quote Ghalib:

    meree ta’meer men muzmir hai ek soorat kharaabee kee
    hayulaa barq-e khirman kaa, hai khoon-e garm dahqaan kaa
    (In my development is concealed an adverse aspect
    The lightning striking the granary is to the toil of the peasant)

    • SouthAsian Says:

      Hasan, I would make the following responses:

      1. I am talking about individual rules/laws/practices/policies at the micro level. The rule of ‘democracy’ or the rule of ‘army’ are macro level discussions and they do reflect a large number of factors. I agree that religion is not helpful to understand differences at that level because many other factors are involved.
      2. I am talking about rules and not about religion. Religion was a convenient vehicle for the argument because different religions have different laws at the micro level. For example, the law of inheritance varies amongst religions. We can pick rules that do not involve religion and still have a similar discussion.
      3. When you will start dealing with the issues you are interested in (education, food, employment, health, shelter. etc.) you will be immediately faced with the choice of policies. For example, should primary school education be provided as a free public good or on a fee-for-service basis; should there be a minimum guaranteed wage or not, etc. In evaluating such choices, analysts try and find situations where different policies have been employed and study the consequences. This helps in choosing the best option for their own situation.
      4. Even the larger canvas – the evolution of society – contains within it many micro choices that do not emerge by themselves but are made but human beings. For example, in the democratic evolution of India there are questions about the choice of official language, the basis for delineation of state boundaries, the rules for sharing river waters, etc. All such choices involve evaluation because different choices have different economic and political implications.
      5. Regarding the verse from Ghalib, my interpretation is that the all choices for development result in gains and losses that fall disproportionately on different groups. In the case of peasants and traders you can think of land reform, or guaranteed price of wheat, or removing the subsidy on electricity. That is why policy options need to be discussed, analyzed and compared. I don’t think we can get away from this task by focusing on some larger canvas. If you can give examples of how that is possible, I might understand your point of view better.

  4. Vinod Says:

    SouthAsian

    This is very insightful. I fully get where you’re coming from. You are simply describing (and not prescribing) the effect of a particular rule.
    I never thought of this effect of rules of inheritance. I know that in general, laws have particular effects in shaping societies. A well known example of that is the effect of the different patent laws related to software in US and UK. Or on a slightly higher level, the effect of having or not having intellectual property regimes on innovation and commerce.

  5. vasant kale Says:

    interesting article. i wish to point out that till the middle of the last century polygamy was a legal practice among hindus too. then why did the problems of succession not arise there?

    • SouthAsian Says:

      Vasant: Inheritance and succession are not governed by polygamy but by the rules that determine how property is to be passed on to heirs. The only impact of polygamy would be upon the number of heirs or claimants. Muslim and Hindu rules of inheritance were very different. The Hindu Joint or Undivided Family System consolidated property and appointed the eldest male heir as the manager (karta) of the ancestral property. The Hindu Succession Act of 1956 has been subsequently amended to give females a share in ancestral property. In England, the law of primogeniture was quite different. These differences had economic and social implications that were discussed in the article.

  6. SouthAsian Says:

    An update on the law of inheritance in England:

    http://www.nytimes.com/2013/06/23/world/europe/son-and-heir-in-britain-daughters-cry-no-fair.html?hp&_r=0

    “The practice of primogeniture — in which titles and estates pass only to male heirs, even negligibly related ones excavated from other continents — may seem as outrageous and antediluvian as denying women the vote, but it is still the law of the land for the aristocracy in Britain.”

    “The system here has kept intact for centuries many of Britain’s grandest estates, including Blenheim Palace, home of the Duke of Marlborough; Chatsworth, home of the Duke of Devonshire; and Highclere Castle, home to the Earl of Carnarvon (and to Lord Grantham, in TV world).

    In Europe, though, the opposite has happened: Estates have been broken up and fortunes diluted because of laws meant to make it impossible to disinherit even unsatisfactory children.”

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