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.

 

Tags: India, Inheritance, Innovation, Islam, Land, Mughals, Primogeniture, Property, Succession