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The Doctrinal Development of “Maraḍ Al-Mawt” in the Formative Period of Islamic Law

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Muslim jurists were at first reluctant to place restrictions on gratuitous dispositions by a dying person. During the first quarter of the second century/second quarter of the eighth century, however, they created a concept of “a sickness causing a fear of death” (al-maraḍ al-mukhawwif) to safeguard the interests of heirs and creditors. They did so by introducing the principle that a gratuitous disposition made by a sick person for the purpose of modifying the inheritance rules should be subject to the bequest restrictions. At the same time, Muslim jurists permitted the wife divorced by her dying husband to inherit from him by according her, retrospectively, inheritance rights at the moment when her husband contracted a sickness which led irrevocably to his death. By the end of the third quarter of the second century/end of the eighth century, the jurists had combined these two definitions of sickness to form the classical theory of death-sickness (Maraḍ Al-Mawt).

Affiliations: 1: Tokyo University, Japan

10.1163/1568519981570258
/content/journals/10.1163/1568519981570258
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/content/journals/10.1163/1568519981570258
1998-01-01
2016-12-09

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