ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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254 KEMAL FARUKI women agnates and all cognates (descended from a common ancestor) both men and women. Family solidarity was possible on this wide. almost amorphous, scale and may have been necessary to withstand the competing claims of the tribe. The eldest male member of such a family possessed considerable authority and upon his death this authority with its responsibilities devolved upon his next eldest brother or his eldest son. Within this larger family unit there existed a strong compulsion towards mutual protection and help. Women of the family moved into another grouping upon marriage while outside women entered the family grouping upon marrying its male members. But in recent times this has decreasingly become an accurate description of the family as a meaningful entity. Even during the lifetime of their fathers, brothers tend to become less involved in questions concerning their nephews and nieces and a Muslim gives considerably greater attention to his daughter. long after her marriage, than he gives to an agnatic nephew. The socio-economic structures of Muslim groups have been undergoing great, indeed unavoidable, changes. The change from a pastoral or agricultural to an increasingly industrial economy, the growing concentrations of people within large impersonal cities and the movement of people from place to place. as their occupations demand, far from their ancestral homes all these factors have tended to make the larger family of the past less meaningful as a social unit. Indeed the process has gone to the extent of making even the close, immediate family a much looser bond in some parts of the world. The first problem is to understand whether Islam welcomes 6r deprecates these changes in the social structure. It can hardly be doubted that Islam attaches the greatest importance to the family as the foundation for a healthy community and that this importance continues in spite of the socio-economic changes of recent times. But the benefits of family solidarity are essentially derived from the ties between the members of the close, immediate family, rather than the wider grouping of collateral and even more distant blood relations. The protection of this close, immediate family, from the challenges facing it, is necessary and. unlike the challenges from tribal loyalties of earlier times, the challenge of today is from its very opposite, an unbridled individualism which asserts itself at the cost of even close family ties. To meet this present-day challenge and strengthen the Islamic
social ideal it may prove desirable or necessary to revise our interpretations of Islamic principles as they find expression in rules of positive law. This is probably the most valid explanation for many of the changes in the interpretation of Islamic family law that are taking place in a considerable, increasing, number of Muslim countries today. Thus in the Islamic laws of succession the preservation and strengthening of the family as the basic grouping of a healthy community has been sought by identifying the hitherto relatively obscure distinction between the true immediate family and the larger amorphous family grouping and then ensuring that these closer ties are adequately expressed in the succession rules. What then is this true "immediate family"? Primarily, the immediate family consists of those related in a direct connection on the male side from the grandfather and his male ascendants how high so ever to father and then son to the grandsons how low so ever (together with their spouses). But one immediate fami!y bifurcates and trifurcates in each generation to form a number of parallel related immediate families formed by uncles, brothers and nephews, Le., the collaterals of each generation while the women of the immediate family transfer after their marriages into the orbit of a totally different immediate family and cease, particularly where their issues are concerned, to be part of the original immediate family of their parents and carried on in distinctly separate immediate families by each of their brothers. The limits of the true immediate family can only be identified with reference to a particular generation. For example, where A has two sons BA and CA and these two sons have each two sons ABA and BBA and ACA and BCA respectively, the immediate family of A includes all the foregoing people but when one moves to the next generation, while the immediate family of BA includes A it only additionally includes his sons ABA and BBA as distinct from the immediate family of CA which includes, again, A. but exclusively encompasses his sons ACA and BCA, as distinct from the immediate family of his brother BA. No sooner does one describe CA or ACA as being a member of BA's family, than one is considering a wider, more tenuous family grouping than that of a true immediate family. Against this background the changes in the succession laws (whether by obligatory bequests or by inheritance by right) both have the objective of strengthening the immediate family and must
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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