ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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264 KEMAL FARUKI propositus. To mechanically interpret the exclusion of the more remote by the nearer in such a way that the very object of strengthening the immediate family is nullified in some lines of descent would not be in consonance with Islamic principles and would constitute an unwarranted interpretation of these principles for the given social situation. Even if, however, the rule of the nearer in degree excluding the more remote is understood in the classical manner (at the expense of the true significance for today of the early verses in the Fourth Szitah and the had?& referred to) the fact remains that exceptions to this rule are to be found in classical law itself. The mother's mother, for example. is not excluded by the father and where these two are the only heirs, the mother's mother takes 116th and the father takes 516th~ as residuary. A second case is where the daughter A and her deceased brother's son B are the only heirs. Although A is nearer in degree she fails to exclude B ; A taking 3 as sharer and B taking the other half as residuary. This failure to exclude applies even if it is the son's daughter or the son's son or the son's son's daughter and he or she continue to inherit notwithstanding the presence of the daughter of the propositus, who is many times nearer in degree. A third example is the failure of a sister of the full blood to exclude an uterine sister (sister from the same mother). Thus. where the heirs are a mother, 2 full sisters and an uterine sister (or brother), the mother takes her 116th. the two full sisters take 2/3rd equally between them and the uterine sister (or brother) takes 116th.' Now if the rule of the nearer in degree excluding the more remote is powerless to exclude the mother's mother, the brother's son and the uterine sister (in the cases given above), how much more powerful should be the claims by right of an orphaned grandchild when he is related on the male side, is in the direct lineal order and is a descendant of the propositus. The system of inheritance by right, without seeking refuge in biyd or legal fictions or devices, clearly identifies an orphaned grandson in his correct position-as a close relative of his grandfather and one who is, in normal circumstances, entitled to receive in his own right what his father would have received. The system correctly identifies the nature of the present-day family greatly changed. and changing, as it is from the family of the past and, having so understood the present-day family structure, it is
ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 265 entirely consistent in working out the proportions to which the heirs (including the grandchild) are entitled upon the death of the propositus. IY. The Two Systems in Practice The idea that the system of inheritance by right "radically upsets the whole structure of the Islamic law of inheritancews arises largely because it uses the principle of representation to ascertain the portions due to the orphaned grandchildren. But it should not be thought that this principle is entirely foreign to Islamic succession rules. In the Hanafi school, it is used by Im'im Muhammad to ascertain the shares due to distant kindred when the intermediate ancestors differ as to sex and in the Ihna 'Ahari school it is used on an even wider scale to calculate the shares of each heir? The system of obligatory bequests, itself, uses the principle of representation to ascertain the amounts due to the grandchildren according to all three methods advocated (which will be explained shortly) for applying the system of obligatory bequests. The only difference between the two systems in their use of the principle of representation is that in the system of inheritance by right the principle is used consistently to give effect to the view of the grandson's status on which the system is based. unlike the system of obligatory bequests where the principle is used erratically with the position of the grandson left undecided. This will become apparent in the cases set out below but before doing so it is necessary to bear in mind the three variant methods advocated for applying the obligatory bequest system. One of these methods, although advocated by the Mufti of Egypt, has the effect of violating the provisions of the law of 1946l0; the method followed by Egyptian courts of first instance results in the obligatory bequest not being a bequest at all according to Anderson1] ; and the third method advocated by Abo Zahra, as will be shown, does not dispel some of the inherent difficulties in this system. The existence of this uncertainty about how obligatory bequests should be applied may itself be an index of the weaknesses of the system. Be that as it may. the three methods for implementing the obligatory bequest system are as follows. The first method used by some Egyptian courts of first instance (some of whose decisions have been reversed on appeal) is described here as the "court method" for convenience, It is to distribute the estate as if the son
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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