April 2. On this date in 1995, Sen McGlinn presented a paper titled
which notes several quotes from 'Abdu'l-Bahá permitting polygamy like
"the Divine Book the right of having two wives is lawful and legal. This
was never prohibited, but it is legitimate and allowed," and
"Concerning bigamy, this has been promulgated, and no one must abrogate
it. 'Abdu'l-Bahá has not abrogated this law. These are false accusations
and lies [spread by] the friends. What I have said is that He
[Bahá'u'lláh] has made bigamy bound on a precondition."
1.
INTRODUCTION
This paper will look at some considerations which might be borne in
mind when interpreting the inheritance laws of the Aqdas, and open up
some interesting possibilities. I am not going to attempt a systematic
presentation of all the implications of those laws, nor a comparison
with the laws of the Bayan and Koran. But although I want to concentrate
on some aspects of the gender equality of the inheritance laws, I
should say something about the significance of the inheritance laws as a
whole, before too many people have left the room because they already
know that inheritance laws are irrelevant. There are scholars, very good
scholars in fact, who argue that these laws have no significance, that
they are a superseded relic of a particular period in the Faith's
history, now applicable only in cases of intestacy. This point of view
is well argued in Seena Fazel's paper on Inheritance (now published, in
the Bahá'í Studies Review vol 4 no 1, but at the time I prepared this I
had only the email version which was posted on Talisman. My comments
relate thus to the earlier version).
Seena considers that the fact that Bahá'u'lláh specifically
states in the Aqdas that every Bahá'í is obliged to leave a will, and
does not suggest or advise that the intestacy pattern should be used as a
model, means that these laws, like the first versions of the obligatory
prayers and the provision allowing a man to marry two wives, have been
superseded by the process of evolution of the Aqdas itself. And he has
found a letter from Shoghi Effendi, in Dawn of a New Day p. 77, which
supports this. The inheritance law of the Aqdas states that non-Bahá'í
relatives do not inherit. But Shoghi Effendi, in a letter written on his
behalf, has said that, "it is always possible for a Bahá'í to provide
for his non-Bahá'í wife, children or relatives by leaving a will. AND IT
IS ONLY FAIR THAT HE SHOULD DO SO." In other words, Shoghi Effendi is
saying that, at least in such a case, we should specifically NOT use
these laws as norms or guidelines in drawing up our wills. And if
everyone does draw up a will, the laws of intestacy will become
irrelevant. Or at least, irrelevant to individuals. Seena does not
consider that they could still be guidelines for a Bahá'í state in
drawing up its laws of inheritance, and thus normative at another level.
Seena has also done some good research on the reasons for the
exclusion of non-Bahá'í heirs, in the context of the legal situation in
which mixed Muslim-Bahá'í or Babi-Bahá'í families found themselves
around 1873. He concludes by suggesting that "the laws of inheritance
were given to address a specific and temporary need of believers living
in Muslim countries at the end of the nineteenth century." And he adds
"It would therefore be unusual if the laws did not take into account the
patrilineal patterns of those societies. But Bahá'u'lláh deliberately
and specifically added provisions to this law that would lead to its
abandonment." And this is the rub. The reason why Seena, and many
others, WANT to argue in this direction, is that the inheritance laws
apparently favour the male heirs, particularly the eldest son, and that
is unpalatable. Seena, and now myself, are joining on the end of an
ongoing discussion about the equity, or lack of equity, in the way in
which male and female heirs are treated in the Aqdas: Linda and John
Walbridge, in an article on 'Bahá'í Laws on the Status of Men', in
*World Order* Vol. 19, were the first in the west to publish a reading
that made some sense of the laws. They inferred some sociological
features of a Bahá'í society, notably a mildly patrilineal pattern, from
the supposed inequalities, and tried to find some reasons why such a
pattern might be desirable for society and for women. Responses to their
article, by a number of authors, were published in the late lamented
*Dialogue* magazine in the Summer/Fall issue of 1987. Not every shell
fired in these responses hit home, but it would be fair to say that the
Walbridge's thesis of a patrilineal pattern received a devastating
broadside. But none of the responses suggested a better way of
understanding these laws, and all operated on the same premise, that the
laws favour male heirs. Whether they do necessarily favour the male
heirs is the question I have tackled. I will argue that the laws allow
more room for interpretation, and for the broad application of the
*mutatis mutandis* principle, than has previously been recognized,
largely because a key text in the Questions and Answers, question 37,
was not available until the publication of the Aqdas in 1992. What I am
going to do is take one possible interpretation of Bahá'u'lláh's answer
to question 37, and spin out from that to the implications for the
inheritance law as a whole. I will also address some other aspects of
that law which have been said to treat female heirs unequally, and show
that they do not. When we put this together, the Aqdas inheritance law
becomes something rather strange and beautiful, and very radical in its
social implications. I hope you like it.
I have already asked you to bracket out any beliefs you may
already have about the irrelevance of the inheritance laws. I will also
have to ask you to suspend judgement about the historical probability of
this interpretation, at least until we have finished playing with it.
Historically speaking, if a thrice-married Persian nobleman of the late
19th century wrote an inheritance code, one would expect it to reflect
the gender attitudes of his time and society. The structure I will
describe comes, sociologically speaking, from another world, in which
men and women are equal not only in the eyes of God, but also in
practice in society: but then, equal in a rather novel way. I'm not
going to deal with the problem of historical improbability in any detail
here. In the first place, the concept of historical probability has
dubious validity when the nobleman who is writing the law code claims to
receive inspiration from a God who transcends historical and cultural
limitations, and in the second place the criticism could only be dealt
with, if we are to use normal scholarly methods, by a broad biographical
account of Bahá'u'lláh's radicalism on other questions (e.g., on the
education of girls, rights of workers, world language and government,
Church- State relations etc). In fact it is not necessary to show that
Bahá'u'lláh foresaw that the response he gave to Question 37 could be
interpreted as promoting gender equality. And I for one do not believe
that the laws of the Aqdas will result in a historically deterministic
way in a Bahá'í society with particular features. Whatever may have been
the intention of their Author, what I am saying is that, as a matter of
practical jurisprudence, the laws can be understood and developed along
the lines of gender equality IF THAT IS WHAT WE WANT.
2.
WHEN THE DECEASED IS A WOMAN
The inheritance laws of the Aqdas are written with the
assumption that the deceased is a man. Thus Bahá'u'lláh explicitly says
that the residence and personal clothing of the deceased [go] to the
male, not female, offspring [K25]. 'Abdu'l-Bahá interpreted this as
meaning that the residence and personal clothing of a deceased MAN
remain in the male line [n44]. Shoghi Effendi says in the Synopsis
[p155] that the residence and clothing of the deceased FATHER pass to
the male not to the female offspring. The Walbridges, in particular,
have projected the effects this law could have were it applied in a
Bahá'í society, but with an assumption (shared, incidentally, by
everyone else I've read on the topic), that the pattern of property
ownership in a Bahá'í society would be similar to that in Middle Eastern
societies - in which the man or father is generally the absolute legal
owner of the family home, if indeed it is owned. Why this pattern should
be projected onto a Bahá'í society is not clear. Even Islamic law had
formally permitted women to retain their earnings as their own property:
"to men is allotted what they earn, and to women what they earn" -
[4:32]. In a society in which both boys and girls are educated in a
trade or profession, and everyone is expected to work, it does not seem
plausible that men would retain their present overwhelming preponderance
of property ownership. Thus even if the civil law does not specify the
joint ownership of marital property, one would expect that it would
frequently happen that the wife would own a share of, or even all of,
the family home. For simplicity's sake I will assume below that the
family wishing to apply the law has 50/50 property ownership. I will
touch very briefly later on the effects of the law in societies in which
men hold all economic properties, or in which women hold some classes
of property which are of symbolic importance. Supposing 50/50, or
shared, property ownership, the question then arises: how is a woman's
estate distributed if the laws of the Aqdas are to be applied? According
to the notes to the Aqdas, though the law is formulated with the
presumption that the deceased is a man, it provisions apply, *mutatis
mutandis* [n38], when the deceased is a woman. The *mutatis mutandis*
principle: "changing what has to be changed", indicates a direction for
interpretation but is hardly explicit: what has to be changed, and how?
There is one explicit statement from Bahá'u'lláh [Q37] which says that
(despite the apparently clear text of the Aqdas [K25]), "the personal
clothing of the mother should be divided in equal shares among the
daughters." This is in contrast to the clothing of a man, which goes to
the eldest son if he is still alive, and if not, goes not to the
children of the eldest son but rather to the second son, and so forth
[n44]. This seems clear enough. In the Questions and answers,
Bahá'u'lláh continues:
The used clothing of the mother should be divided in
equal shares among the daughters, but the remainder of her estate,
including property, jewellery, and unused clothing, is to be
distributed, in the manner revealed in the Kitab-i-Aqdas, to all her
heirs. If however, the deceased hath left no daughters, her estate in
its entirety must be divided in the manner designated for men in the
holy Text. [Q37]
The 'remaining property' could include all or part of the family
home, and other property. To consider the family home first, what is
"the manner revealed in the Aqdas" when the deceased is a woman? When
the deceased is a man, 'the manner revealed in the Aqdas' is that the
principal residence passes to the eldest son. So when the deceased is a
woman, would the residence pass to the eldest daughter, or, following
the example of the personal clothes, would it be equally divided amongst
the daughters? If she should have no daughters at all, at least, it
would clearly go to the sons and be distributed in the manner designated
for men in the Holy Text - thus to the eldest son if he is still alive,
then the second son [n44]. The situation can be shown in a table:
| Deceased man | Deceased woman |
| personal clothing | eldest son (primogeniture) | all daughters equally |
| family home | eldest son (primogeniture) | ? (see discussion below) |
| other property | approx 40% equally among sons and daughters |
If you consider that the principle of primogeniture relates in
some way to the family home - for instance, that it is desirable for
practical reasons that the ownership of a home should not be too widely
divided - then, extrapolating across the row, one would conclude by
analogy that when a woman dies her principal residence, or share in the
ownership of the family home, would pass to her eldest daughter, and
then to the second daughter and so forth. The difficulty with this
reading is that primogeniture on the male side applies also to personal
clothing, which is easily divisible. It seems likely, therefore, that
primogeniture is a principle which attaches to the male line in general,
and not just to the family home. In fact it applies in at least one
other case: prophethood. In *The Dispensation of Bahá'u'lláh*, page 56,
Shoghi Effendi cites `Abdu'l- Bahá as writing that "the eldest son hath
been given extraordinary distinctions. Even the station of prophethood
hath been his birthright". Since there is no indication that
primogeniture applies in the female line, and a specific counter-example
in the case of personal clothing, I would argue that, when a woman
dies, her principal residence or share in the family home should be
divided equally among the daughters. That is, I am applying an analogy
down the female column, rather than across the 'personal residence' row.
There is another way of reading the answer to Question 37: you
could read the last sentence as saying [If the deceased woman has left
no daughters, her clothing also should be divided in the manner
designated for men]. In that case the empty cell would be filled in with
'eldest son, primogeniture', and we are back to the situation which
previous commentators have assumed, and also to a society in which women
do not own property to the extent that men do, since that would rule
daughters out of inheriting what is the most important class of property
for the bulk of the population. So let us assume for the moment that
the conditional phrase 'if however, the deceased hath left no
daughters,' relates quite literally to 'her estate in its entirety', and
not just to the clothes. In that case, one would have to say that, if
there *are* daughters living, this part of the inheritance would *not*
go to the eldest son, because in that case it would make no difference
for the distribution of the estate whether or not there were daughters.
In other words, the text from Question and Answers no. 37 shows that the
distribution either of the clothing alone, or of the whole estate, is
in some way different when there are no daughters, and I am going to
assume that the reference is to the whole estate. Which would mean that
either the eldest daughter or the daughters collectively inherit their
mother's share of the family home.
This is completely different from the kinds of inheritance
patterns prevailing in either East or West. In a Western society at
present, if one partner dies, the other partner generally becomes the
sole owner of at least the personal residence, so that the children
inherit that only when both parents have died. Under this inheritance
pattern, if a man dies, assuming joint ownership of the family home, the
eldest son becomes in effect a partner to his mother in the ownership
of the home, and if a woman dies, her daughters inherit her share of the
home. This strikes me as different, but not unfair. It makes the
children a full part of the family, rather than having a core
(man+woman) and a periphery (children). And it is appropriate to a
society in which women are expected to learn and practice a trade or
profession. Rather than assuming that a widow is helpless and needs a
son to take care of her, as I read the law it is assuming that she is
able to take care of herself. The significance of this may be primarily
symbolic rather than economic. The family home is a symbol of the unity
and continuity of the family, and this provision that the children
inherit at the death of either parent, rather than when both parents
have died, means that the family home is not left half-tenanted, as it
were: when a man dies the eldest son in some respects takes his place,
and the male and female principles (yin and yang, if you like) continue
as joint guardians of the family hearth. When a woman dies, her daughter
or daughters take her place. Thus rather than indicating distinct (and
patriarchal) social roles for men and women, the inheritance law could
be interpreted as emphasizing the need for the union and harmony of
these two fundamental forces. The Walbridges argued that the Bahá'í laws
of inheritance favour men over women, in order to establish family
responsibility as a male obligation, and so ordain a 'mildly patrilinear
family'. Supposing one accepts the link between inheritance
(specifically, inheritance of the family home and personal clothing) and
how descent and identity are traced, this pattern of inheritance would
actually point towards a bilinear society, consisting of two `lines' -
male and female - with symmetrical equality between them. Inheritance
and lineality are broadly dispersed every time the torch is passed from
one generation to another, but a certain primacy and privilege as
regards the most symbolic possessions is reserved for the sons of a man
and the daughters of a woman. Thus the Quranic principle: "To men is
allotted what they earn, and to women what they earn" [Quran 4:32] is
extended from generation to generation. Following this principle, one
would assume that the shares in the third class of property which are
assigned to the father and mother when the deceased is a man (with the
father getting 330 shares and the mother 270) would be reversed when the
deceased is a woman, but I have found nothing to either support or
counter this assumption in the writings. It is simply an argument from
analogy.
3.
THE THIRD CLASS OF PROPERTY
I would like to add some remarks about gender equality in the
distribution of the third class of property, i.e., all that remains
after the personal residence and clothing have been subtracted. So far
as the children go, it makes no difference at this point whether it is
the father or mother who has died, and the eldest children inherit
equally with the younger children. The property in the third class may
not be much, but may be the deceased's business, or farm, or skyscraper
on Wall Street. Because it may be of considerable value, can produce an
income, and can be converted to cash in a way that clothing and the
family home cannot, this is the part of the inheritance which could
cause some really nasty family squabbles. Suppose the deceased was a
man, and indeed owned a skyscraper on Wall Street worth 2,520 million.
The children get 1,080 million, evenly divided between sons and
daughters, eldest and younger. The fact that the property which could
produce an income is divided equally rather undercuts the argument that
the oldest son is expected to provide for his mother - if that were so
he would surely require a larger share of the income-generating
property.
The distribution of the remaining shares is very interesting,
particularly as regards the brothers and sisters of the deceased. In the
case above, the man's only sister gets 150 million to keep her warm.
The man's ten brothers get just 21 million each [p153]. If on the other
hand a man had one brother and 10 sisters, the proportions are roughly
reversed (210 for the brother, 15 for each of the sisters). This does
slightly favour the male heirs, as a group, over the females as a group.
The Aqdas says "to the brothers, five parts or three hundred shares; to
the sisters, four parts or two hundred and forty shares" [K26], but the
outcome for individuals is random. It depends on how many brothers we
have if we are boys, how many sisters we have if we are girls, and of
course on how wealthy our siblings are and whether we are the oldest or
the youngest of the family - younger sons and daughters are more likely
to inherit from their siblings than older children. Once again we can
see that the inheritance law does not systematically favour male heirs,
though the slight difference between brothers and sisters of the
deceased may have some significance. It does treat male and female heirs
as distinct groups.
The way in which this class of property is divided has led me to
two reflections - deviations in fact from the topic of gender equality,
but interesting nonetheless.
3.1) The first reflection is that this division is random,
rather than equitable. This may be precisely the point. One tends to
assume that the function of an inheritance law is to ensure the just
distribution of wealth, bearing in mind other goals such as the need to
avoid excessive subdivision of agricultural land (primogeniture) or
excessive accumulation of wealth (inheritance taxes). But the fact that
35% of the third class of wealth under the Aqdas system is distributed
in this random way may indicate that justice was not a significant
consideration in Bahá'u'lláh's mind at this point. One can, after all,
only expect justice in respect to rights. The wealth that we have a
'right' to, that should be 'fair', is what we earn ourselves. Relations
between the workers and employers, for instance, should emphatically be
based on justice. But inheritance is chance - we don't have any RIGHT to
inherit at all. If we have no claim on unearned wealth, then the
inheritance law does not have to be fair. You might say that `justice'
would be if any excess wealth beyond what was required for the
continuity of the family were to be sold, and the proceeds given to the
poor.
It could also be that no law, however designed, can ensure
justice in particular inheritance cases, since every family is
different. Perhaps justice is an important feature of inheritance, but
can only be achieved by individuals making wills which are just. But if
this were applied as a general pattern, effectively rendering the
inheritance laws of the Aqdas redundant at an individual level, it would
have the disadvantage of making the potential heirs dependent on the
good opinion of those holding the wealth in the family. Where the family
wealth is considerable, this puts the children in the position of
having to compete for the esteem of their parents and older siblings, at
the expense of the dignity of all concerned. Of course this is the
normal situation in the West. There have been a good many soap opera
plots spun out of it, and real life dramas in plenty. There is much to
be said in favour of a system under which one must accept that one's
portion is determined by lot and can be improved only by adding one's
own earnings to it. So while every Bahá'í should make a will, and may
determine how his or her estate should be divided, in an all-Bahá'í
family it would in many cases be best, for family unity and the
spiritual development of all concerned, to announce from the outset that
the excess wealth will be distributed according to the lot of the
Aqdas. It should be clear why non-Bahá'í heirs could not be expected to
accept such a distribution. The primary purpose of the individual's Will
would then be to provide a testimony of faith and perhaps a document of
family history and continuity. As the Aqdas says:
Unto everyone hath been enjoined the writing of a will.
The testator should head this document with the adornment of the Most
Great Name, bear witness therein unto the oneness of God in the
Dayspring of His Revelation, and make mention, as he may wish, of that
which is praiseworthy, so that it may be a testimony for him in the
kingdoms of Revelation and Creation and a treasure with his Lord, the
Supreme Protector, the Faithful. (K109)
There is no mention here of distributing property - that comes in
Q69. We are free to dispose of all our property in our wills (in
contrast to Quranic law, which permits Muslims to dispose of only one
third of their estates as they see fit, the remaining two thirds being
distributed in a fixed system), but we do not *have* to do so. Thus it
could be argued that the reason why making a will is a personal
obligation is not because we should all think responsibly about how our
estates are to be distributed. It may in fact be analogous to the
obligatory prayer. The Aqdas law on wills resembles the law of the
Persian Bayan, as summarized in a passage in *Selections from the
Writings of E.G. Brown*:
The confession of faith of the dead man, and his belief
in the Divine Point and the Letters of the Living, with a declaration of
his love for them, and an account of his actions, shall be written and
preserved by his heirs till the coming of Him whom God shall manifest.
If we add the Bayanic element, that the Will should be preserved by
the heirs, the will would become a family history of 'that which is
praiseworthy' in the actions of each generation.
3.2) The second reflection arising from the treatment of the
heirs to the third class of property is that the details of the
inheritance law may have an aesthetic rather than practical rationale.
Nine parts for children, eight parts for the wife (or husband), seven
parts to the father, six parts to the mother, five to the brothers, four
to the sisters, three to the teachers. The system is easy to remember,
and elegant. The proportions which are actually inherited are changed
because Bahá'u'lláh says "We heard the clamour of the children as yet
unborn, We doubled their share and decreased those of the rest" [K20].
If the precise proportions were what was important, Bahá'u'lláh could
have said: ["We have allotted 108 shares to the children; to the wife,
39 shares, to the father, 33 shares, to the mother, 27 shares, to the
brothers 21 shares, to the sisters, 15 shares, and to the teacher 9
shares"]. It might have been a more direct way of saying the same thing,
but it lacks the elegance of the Bab's scheme: so Bahá'u'lláh retained
the elegance and made the modification in a footnote, so to speak. No
doubt the distribution system, if it is applied in practice, would have
some effects on the structure of families and of society, but if we
analyze it as if Bahá'u'lláh was writing here as a social engineer, in
the way we would discuss, say, the social visions of the political
parties which determine their positions on inheritance taxes, we may be
imposing something completely foreign to Bahá'u'lláh's concerns onto the
text. Of course many of Bahá'u'lláh's other laws and principles will
reshape society, and are obviously intended to do so.
4.
CLOSING REMARKS
To return to the division of the inheritance, and specifically
to gender inequalities. Another class of inheritors, for the third class
of property, deserve to be mentioned: the grandchildren. The Aqdas
says:
Should the son of the deceased have passed away in the
days of his father and have left children, they will inherit their
father's share, as prescribed in the Book of God. [K26]
Bahá'u'lláh was asked "What is to be done if the daughter hath died
during the lifetime of her father?" He replied "her share of the
inheritance should be distributed among the seven categories of heirs
according to the ordinance of the Book" [Q54]. This means that she does
not pass her right to inherit from her father on, to her children,
whereas when a son dies his share of his father's inheritance passes to
his children. Seena cites this as one of the instances in which the
Kitab-i-Aqdas favours men over women. But, while this is unexpected, it
does not in fact favour male heirs over females, since the children of
the daughters might be all boys, and the children of the sons might be
all girls. Rather, it has the effect of limiting the spread of wealth.
Under the customs usual in the West, a child stands to inherit from 4
grandparents, but to share that inheritance with a potentially large
number of siblings and cousins. Under the Aqdas system, a child stands
to inherit from its own siblings, its parents, and, if its mother dies
before the maternal grandparents, from the parents of its father only.
Wealth will be marginally more concentrated, and inequalities of wealth
slightly less rapidly dispersed as the generations go by, under the
Aqdas system. I doubt however that such social effects were a
consideration in the design of the law. It seems to me to be another
reflection of the pattern we have seen, that daughters have their
closest links to, and inherit primarily from, their mothers. By analogy,
I assume that if Bahá'u'lláh had been asked "What is to be done if the
son has died during the lifetime of his mother?" the answer would have
been to redistribute his share among the other seven categories of
heirs. Once again I have found nothing to support or counter this: it is
purely an argument from analogy.
Before I stop, I would like to revert briefly to the first class
of property, personal clothing. There are quite a few societies in
which women can own property of symbolic, rather than economic,
importance: family heirlooms, tapa mats of great antiquity, land on a
sacred mountain, and so forth. If the 'personal clothing' could be
interpreted broadly to apply to property of symbolic importance or
sentimental value, the law which provides for the eldest son to inherit
the father's clothing, and for the daughters to inherit their mother's
clothing, could be used to enable these possessions to be kept in the
male or female lines where custom demands it, and so help to ensure the
continuity of these cultures. I would assume that such interpretations
would be the concern of the National Spiritual Assembly. This is one
small example of the ongoing significance of these laws, and why it is
important that they recognize male and female heirs as two distinct
classes. In many societies it is culturally necessary to recognize the
differences. Without wanting to revive the myth of the feminine
mystique, it is also psychologically realistic, since women, as women,
do have shared interests and bonds. `Abdu'l-Bahá has been cited as
saying that "the new age will be an age less masculine and more
permeated with the feminine ideals, or, to speak more exactly, will be
an age in which the masculine and feminine elements of civilization will
be more evenly balanced." (Women, page 369 of the compilation of
compilations). His vision is not of an androgenous age in which
masculine and feminine elements have become irrelevant! I also promised
to mention how the law, as I have interpreted it, would work out in a
society in which the men do own all the economic property. The answer I
am afraid is that this inheritance law will tend to perpetuate the
inequality, with some moderating effect since daughters inherit the
third class of property equally with sons. But if there was a society in
which women owned all the property, this law would also perpetuate, but
soften, that inequality. It is not the law of the Aqdas which is
unequal, but the society. And that is our problem. Thus, where previous
commentators have found, or assumed, that the inheritance laws favour
the male heirs, and have then sought for explanations which justify the
inequality, in my reading the male heirs are not generally favoured. And
if we read Q37 as I have suggested, male heirs are not even favoured as
regards the inheritance of the family home. Rather, there is a
systematic principle of symmetrical equality between distinct male and
female lines. As I said at the outset, something strange, and rather
beautiful.
The Obligatory Prayer (salat)
There is no law more basic to religion, in Islam or in
the Bahá'í Faith, than the law of prayer. It is the first law commanded
in the Aqdas and was clearly fundamental to Bahá'u'lláh's notions of
religion.
In verse 6, Bahá'u'lláh says: We have enjoined obligatory prayer
upon you, with nine rak'ahs, to be offered at noon and in the morning
and the evening unto God, the Revealer of Verses. We have relieved you
of the greater number,11 as a command in the Book of God.12
Yet, within five years of the revelation of this verse, Bahá'u'lláh
had revealed three different obligatory prayers, the ones which Bahá'ís
use today. The reasons for the abandonment of the original nine-rak'ah
prayer are not clear. In the Questions and Answers, Bahá'u'lláh says:
"Some years ago a number of the ordinances of the Kitab-i-Aqdas
including that Obligatory Prayer [the original one] were, for reasons of
wisdom, recorded separa with other sacred writings, for the purposes of
preservation and protection. Later these three Obligatory Prayers [the
present ones] were revealed." The notes to the Aqdas indicate that the
nine-rak'ah prayer "was not released to the believers in [Bahá'u'lláh's]
lifetime, having been superseded by the three Obligatory Prayers now in
use. Shortly after the Ascension of Bahá'u'lláh, the text of this
prayer, along with a number of other Tablets, was stolen by
Muhammad-'Ali, the Arch-breaker of His Covenant."13 However, this
senario seems highly unlikely, at least with regard to the theft of the
text, in light of Bahá'u'lláh's statement that the text had been "sent
away" for safekeeping and was not in his possession in 'Akka. Therefore,
while Muhammad-'Ali's theft of a large number of Bahá'u'lláh's original
Tablets is well known, it seems probable that the text of the
Obligatory Prayer was not among them.14 Nor does the unavailability of
the Tablet explain why Bahá'u'lláh did not simply reveal the text of the
prayer again. On a number of occasions he did, in fact, re-reveal some
passages of his revelation without recourse to the original Tablets
concerned. We might presume that he could have done so with the original
obligatory prayer, as well.
One is left with the impression, given these facts, that
Bahá'u'lláh did not find it important that the original prayer be
adhered to--even though it had been enjoined in the Most Holy Book.
Three other Obligatory Prayers were revealed a few years later, and the
believers were left free to choose among them to satisfy the general
principle of salat, daily obligatory prayer.15 Question 63 of the
Questions and Answers reflects the confusion over this matter that must
have been common among Bahá'ís after the revelation of the "Tablet of
Obligatory Prayers."16 Further discussion of this matter must, no doubt,
await further research. But, it is striking that even in this first and
most basic of laws in the Kitab-i Aqdas there has been radical
development a nd transformation. The text of the Holy Book here appears
to possess a fluidity and provisional quality which is unexpected,
especially in view of Muslim ideas about the Qur'an.
Inheritance Laws
A similar fluidity is found in the development of the Bahá'í
inheritance laws through time. Here again, it would appear that the most
radical change in the intent of the law has been accomplished by the
time Bahá'u'lláh's Questions and Answers are revealed. First, it should
be noted that the laws of inheritance in Islam present a fixed listing
of heirs to the deceased who are alotted a certain percentage of
property based on gender and relationship. There is no area of
discression here. The estate is divided by Muslim clerics in accord with
the provisions of the law. The only question to be raised is whether or
not all of the estate has been accounted for, and whether or not the
judge (qadi) has been honest. At first glance, the laws of the Kitab-i
Aqdas would seem to present the Bahá'í s with a similar system. The need
for such laws of inheritance, as an alternative to Muslim law or Babi
law, must have been urgent for the Bahá'ís of Iran. Bahá'u'lláh
indicates that he found it necessary to reveal laws in this regard as
early as the Adrianople period, when the Bahá'í community had bearly
begun to exist.17 Bahá'u'lláh reveals laws which modify the categories
of inheritance revealed by the Bab and found in the Persian Bayan. At
this point, we simply have a modified Muslim system of inheritance which
offers little or no discression to the living to divide their
possessions among their heirs. This understanding is clearly reflected
in Question 69 of the Questions and Answers which inquires of
Bahá'u'lláh whether a person has any right to will a part of his estate
to charity. The question reads:
May a person, in drawing up his will, assign some
portion of his property--beyond that which is devoted to payment of
Huququ'llah and the settlement of debts--to works of charity, or is he
entitled to do no more than allocate a certain sum to cover funeral and
burial expenses, so that the rest of his estate will be distributed in
the manner fixed by God among the designated categories of heirs?18
To which Bahá'u'lláh gives the following astounding reply:
A person hath full jurisdiction over his property. If he is
able to discharge the Huququ'llah, and is free of debt, then all that is
recorded in his will, and any declaration or avowal it containeth,
shall be acceptable. God, verily, hath permitted him to deal with that
which He hath bestowed upon him in whatever manner he may desire.19
This answer, of course, has the effect of abrogating the entire law
of inheritance which is elaborated in some detail in the Aqdas and the
Questions and answers. At most, the detailed exposition of heirs is left
as a residual category to be applied only in cases of intestacy. But,
coupled with the command that every believer is obliged to write a will
found at verse 109 of the Most Holy Book, even this residual category
should, in the future, disappear entirely.20 Again, one is left with the
impression that the real issue here is one of a just distribution of
property, and not a fixed set of categories. Indeed, the further
development of the law, as interpreted by Shoghi Effendi, seems to point
in that direction. But, a full exploration of that development is
beyond the scope of this paper.21 But again, there is the most radical
development and transformation of the original law here. The unexpected
fluidity of the law is instructive.
The Law of Monogamy
The law of the Kitab-i Aqdas which permits marriage to two wives
(simultaneously) has likewise undergone development, in a trajectory
which has resulted in the requirement of monogamy which is binding upon
all believers. Again we find the same unexpected fluidity of the laws of
the Aqdas which a rigid and literalist approach cannot explain.
Permission for polygyny is explicitly given in the Kitab-i Aqdas, though
Bahá'u'lláh follows this provision of the law with a clear admonition
to monogamy:
God hath prescribed matrimony unto you. Beware that ye take not
unto yourselves more wives than two. Whoso contenteth himself with a
single partner from among the maidservants of God, both he and she shall
live in tranquillity.22
At the time that the Kitab-i Aqdas was revealed, this particular
text was taken at face value--as permission for marriage to two wives,
with strong advice in favor of monogamy. In fact, early Bahá'í men--both
those resident in the Holy Land and those in Iran--not uncommonly took
second wives during Bahá'u'lláh's lifetime and afterwards. In the notes
to the current English edition of the Kitab-i Aqdas, the editors are at
pains to explain the historic development of this law. Note 86 reads as
follows:
While the text of the Kitab-i-Aqdas appears to permit bigamy,
Bahá'u'lláh counsels that tranquillity and contentment derive from
monogamy. In another Tablet, He underlines the importance of the
individual's acting in such a way as to "bring comfort to himself and to
his partner". 'Abdu'l-Bahá, the authorized Interpreter of the Bahá'í
Writings, states that in the text of the Aqdas monogamy is in effect
enjoined. He elaborates this theme in a number of Tablets, including the
following:
Know thou that polygamy is not permitted under the law
of God, for contentment with one wife hath been clearly stipulated.
Taking a second wife is made dependent upon equity and justice being
upheld between the two wives, under all conditions. However, observance
of justice and equity towards two wives is utterly impossible. The fact
that bigamy has been made dependent upon an impossible condition is
clear proof of its absolute prohibition. Therefore it is not permissible
for a man to have more than one wife.23
However, although this is a passage which reflects the current
Bahá'í position on the matter, there are other statements from
'Abdu'l-Bahá which also bear on m onogamy and in which the question is
much more ambiguous. For example:
You asked about polygamy. According to the text (nass)
of the Divine Book the right of having two wives is lawful and legal
(ja'iz). This was never (abadan) prohibited, but it is legitimate and
allowed (halal wa mubah). You should therefore not be unhappy, but take
justice into your consideration so that you may be as just as possible.
What has been said was that since justice is very difficult [to
achieve], therefore tranquillity [calls for] one wife. But in your case,
you should not be unhappy.24
Now in this case, the Tablet appears to have been sent from
'Abdu'l-Bahá to a Bahá'í man who was already married to two women, which
we have noted was not uncommon. Therefore, this provision may refer to a
special case. It is still a provision of Bahá'í law that a man may
remain married to more than one wife if he contracts the marriages in
ignorance of the law, or before becoming a believer. However, 'Abdu'l-
Bahá ap pears to take the position here that bigamy is "lawful and
legal." Another statement from 'Abdu'l-Bahá which needs to be examined
is the following:
Concerning bigamy [the number of wives], this has been
promulgated, and no one must abrogate it (masusast nasikhi nadarad).
'Abdu'l-Bahá has not abrogated this law. These are false accusations and
lies (muftariyat-i rufaqast) [spread by] the friends [i.e., Covenant-
breakers?]. What I have said is that He [Bahá'u'lláh] has made bigamy
bound on a precondition. As long as someone does not attain certitude
regarding the capability to practice justice and his heart is not at
rest that he can practice justice, he should not be intent upon a second
marriage. But if he should be sure and attain certitude that he would
practice justice on all levels [and conditions] (dar jami'-i maratib),
then a second marriage is lawful. Just as has been the case in the Holy
Land (Ardi-i Maqsud): the Bahá'í friends wished to marry a second wife,
accepting this pre- condition, and this Servant [i.e., 'Abdu'l-Bahá]
never refrained [from giving permission], but insisted that justice
should be considered, and justice actually means here self-restraint
(daraji-i imtina'). But they said that they will practice justice and
wished to marry a second wife. Such false accusations [concerning
'Abdu'l-Bahá's prohibition of bigamy] are the slanderous whisperings
(zamzamih) of those who wish to spread doubts [in people's hearts]. And
to what degree they already succeed in making matters ambiguous! [Our]
purpose was to state that bigamy without justice is not lawful and that
justice is very difficult [to achieve].25
What makes all of these quotations from 'Abdu'l-Bahá so difficult to
interpret at this stage is that we have no information concerning the
dates they were written or the circumstances which they address.
Certainly more research is called for. But I would suggest that
'Abdu'l-Bahá gradually moved from a position that bigamy was permitted
by Bahá' i law to a position that it was not, since it had been
conditioned on justice--which is an impossible condition. The curious
thing about 'Abdu'l-Bahá's argument here is that justice is not
mentioned as a condition for polygyny in the Aqdas itself. Even the
advice for monogamy is justified as a means to tranquillity, not to
justice. It is actually in the Qur'an that we find marriage to more than
one wife conditioned on justice:
And if ye fear that ye will not deal fairly by the
orphans, marry of the women, who seem good to you, two or three or four;
and if ye fear that ye cannot do justice [to so many] then one [only] .
. .26
In one Tablet, 'Abdu'l-Bahá explicitly makes the connection between
the quranic requirement of justice and the law of monogamy:
In the Qur'an the word has been revealed "and if ye fear
that ye cannot do justice [to so many] then one [only] . . .',
indicating that in the presence of God the acceptable judgment is
monogamy.27
The context of this issue as it arose in the Bahá'í community during
'Abdu'l-Bahá's ministry is, of course, Islamic reformism. Precisely the
argument that 'Abdu'l-Bahá was making was also being made by Muslim
modernists at the same time, and in the same place. In 1900, Qasim Amin
published The Liberation of Women (Tahrir al-Mar'ah) in Cairo, which
caused an enormous stir. Essentially, Amin and his circle of modernists
argued that the verse in the Qur'an which permitted up to four wives had
been made dependent on the husband doing justice to multiple wives.
Since this was impossible (especially in the twentieth century), the law
of the Qur'an actually require monogamy, at least in a modern
context.28 'Abdu'l-Bahá's argument with regard to the Kitab-i Aqdas
having conditioned bigamy on an impossible condition is, in form and in
content, indistinguishable from the Muslim modernist argument and
probably dates from around the same time. It appears that the beloved
Master borrowed this controversial Islamic modernist argum ent to
interpret the the law of the Bahá'u'lláh in such a way as to enjoin
monogamy on all believers. Even so, he insisted (perhaps only at first)
that marriage to two wives was lawful. Yet, decades later the Guardian
of the Faith would write that the Aqdas "prescribes monogamy." The
Bahá'í law of marriage had progressed from permiting two wives, while
recommending only one, to a position forbidding polygamy.29 Again, we
have a subtantial change in one of the most fundamental laws of the
Bahá'í revelation. Again we face an unexpected flexibility and
development in the law itself, one that is incompatible with a rigid,
literalist approach to the text.
Conclusions
Perhaps it is too early to draw any conclusions from the
preliminary information that is gathered in this very tentative paper.
However, that will not stop me from trying, of course. It would appear
to me that any conceptualization of the Kitab-i Aqdas which would see
the book as establishing a fixed and elaborate set of laws and
requirements is misplaced. Even in the most central issues that the book
addresses--prayer, inheritance, and marriage--there has been a radical
development in Bahá'í law. While the Aqdas provided an initial framework
in which these matters could be address, Bahá'u'lláh during his own
lifetime modified and abrogated provisions of the text over time. This
process continued through the interpretations of 'Abdu'l-Bahá and Shoghi
Effendi, and is certainly still under way through the on-going
legislation of the Universal House of Justice. Nor do I believe that it
is possible that such a process can ever have an end. Since Bahá'u'lláh
has not revealed a "mere code of laws," but has rather revealed a
"Choice Wine" intended for the intoxication of humanity. Perhaps this
"Wine" can be understood as the ethical and moral principles that will
guide humankind through the next hundreds of years, and not as a rigid
and unchanging set of laws that regulate the details of human life.
Notes
1 The ideas presented in this paper were influenced by recent discussions on Talisman.
2 Ekbal, "Kitab-i-Aqdas: Redating is Beginnings," unpublished paper.
3 Bahá'u'lláh, The Kitab-i-Aqdas: The Most Holy Book (Haifa:
Bahá'í World Centre, 1992) K98, pp. 55-56. It seems to me to be
significant that at this point in the book, Bahá'u'lláh is still
referring to the composition as a "Tablet."
4 John Walbridge, personal communication via Talisman (e-mail Bahá'í discussion group).
5 Again, the dsignation "Books and Tablets" would seem to
indicate a composition that has not yet been formed into a specific Book
of Laws.
6 As I understand, Mark Hellaby has prepared such a history for
the Universal House of Justice. If it is available for the information
of Bahá'í scholars, it would be most useful to obtain a copy.
7 Opium is explicitly forbidden twice in our current text of the Kitab-i Aqdas, at K155 and K190.
8 Juan Cole has informed me that he has in his possession a
photocopy of an 1884 ms. of the Aqdas, which is in the British Library.
It does not have the final verse forbidding opium in it.
9 Bahá'u'lláh, Tablets of Bahá'u'lláh (Haifa: Bahá'í World
Centre, 1978) p. 128. Indeed, on the basis of this passage, it seems to
be that one might reasonably argue that the eighth Ishraq might simply
be added to the text of the Aqdas itself as verses 191-193.
10 Shoghi Effendi, God Passes By (Wilmette, Ill.: Bahá'í Publishing Trust, 1944) p. 216.
11 That is, five times a day, as is obligatory in Islam.
12 Bahá'u'lláh, Kitab-i-Aqdas, K6. The note attached to this
verse (Note #4) in the current English edition of the Kitab-i Aqdas
explains that "the Obligatory Prayer originally enjoined by Bahá'u'lláh
upon His followers consisted of nine rak'ahs. The precise nature of this
prayer and the specific instructions for its recitation are unknown, as
the prayer has been lost." (p. 167)
13 Note #9, p. 169.
14 It is, of course, possible that the Tablets which had been
"sent away" had been sent back to Bahá'u'lláh by the time of his
ascension, but there is no indication of this.
15 Cf. Questions and Answers, Q65, p. 126
16 Bahá'u'lláh, The Kitab-i-Aqdas, Q63, p. 125.
17 Bahá'u'lláh, The Kitab-i-Aqdas, Q100, p. 136-37.
18 Ibid., Q69, p. 127.
19 Ibid.
20 For a further elucidation of this argument, see Seena Fazel,
"The Inheritance Laws of the Kitab-i-Aqdas." unpublished paper delivered
at the Fourth Arjmand Conference on Scripture, Nijmegen, Netherlands,
1994; a version of this paper appears as a "Sounding" in The Bahá'í
Studies Review, vol. 4 (1994) no. 1. See also Anthony Lee's response to
Linda and John Walbridge's "Bahá'í Laws and the Status of Men" (in World
Order, vol. 19 [1984-85] no. 1 & 2, pp. 25-36) found in dialogue,
vol. 2 (1987) no. 1, pp. 32-34.21 There are two letters in particular in
which the Guardian has indicated that
1) the inheritance laws of the Aqdas should not be taken as a
guide for writing one's personal will, at least in the case of
non-Bahá'í relatives (who otherwise would be disinherited), and 2) that
these same laws point in the general direction of a wide distribution of
an estate to various heirs. (Shoghi Effendi, The Dawn of a New Day [New
Delhi: Bahá'í Publishing Trust, n.d. (1970)] p. 77; and . . . )
22 Bahá'u'lláh, Kitab-i-Aqdas, K63, p. 41.
23 In Bahá'u'lláh, Kitab-i-Aqdas, note 89, pp. 205-206.
24 From Amr va Khalq 4:173. I am grateful to Sen McGlinn for
providing me (via Talisman) with the quotations from 'Abdu'l-Bahá found
in Amr va Khalq which follow. These are provisional translations which,
as I understand, were made by Dr. Kamran Ekbal.
25 Amr va Khalq 4:175-76.
26 Qur'an 4:3
27 Amr va Khalq 174f.
28 I am grateful to Juan Cole for this information.
29 Shoghi Effendi, God Passes By (Wilmette, Ill.: Bahá'í
Publishing Trust, 1944) p. 214. Actually, it appears that the Guardian's
position on this question was more complicated than that. It is
reported that he explained to the Bahá'ís in Iran that bigamy was
against the administrative regulations of the Faith, not a violation of
divine law. But, a full exploration of this matter is beyond the scope
of this paper.
