The dual basis of entitlement

Sa‘d's case embodies the essence of the changes introduced under Islam into the customary Arabian law of inheritance. In the tribal society of pre-Islamic Arabia the system of inheritance was designed to keep property within the individual tribe and maintain its strength as a righting force. The tribe was patriarchal and patrilineal. Women occupied a subordinate and subjugated position within the group whose bond of allegiance was that of ʿaṣabiyya – descent through male links from a common ancestor. A woman who married into another tribe belonged henceforth, along with her children, to the tribe of the husband. The maternal or uterine relationship, therefore, lay outside the structure of tribal ties and responsibilities. In these circumstances the proper exploitation and preservation of the tribal patrimony meant, inter alia, the exclusion of females and non-agnate relatives from inheritance and the enjoyment of a monopoly of rights of succession by the male agnate relatives, or ʿaṣaba, of the deceased. Hence the initial appropriation of Saʿdʾs estate by his brother, as his nearest male agnate, to the exclusion of the wife and daughters.