Historical Background of Islamic Law

To understand the Islamic law of succession as a whole it is useful to first consider the system of succession that operated within the Arabian Peninsula prior to the revelation of the Quranic Injunction on succession. Although we do not have the exacts details of the system that operated prior to the Quranic revelations, we do not know that the system of inheritance was confined to the male agnates relatives of the deceased.[1]

The object and purpose of the old customary system of inheritance amongst the Arabs was the maintenance of the goods within the family. Heirship amongst the early Arabs was determined by consanguinity, adoption or contract. Like other ancient societies, the old Arab society enjoyed the complete freedom of testamentary disposition.
In the old customary system, women not only had no share in the inheritance they themselves like other ancient systems were themselves inheritable. Uterine relations such as uterine siblings were also completely excluded.

Amongst the male agnates, there were rules of priority, which determined which of the surviving male agnates were entitled to inherit. It is likely that the rules of priority that operate amongst the ‘Asabah in Shari’ law are a carryover of the old customary agnatic system.[2]

By specifying clear cut entitlement and specific shares of female relatives Islam not only elevated the position of women but simultaneously safeguard their social and economic interest as long ago as 1400 years. The Islamic system of inheritance also has the effect of breaking up the concentration of wealth amongst a few hands, thereby ensuring the socio-economic welfare of the society at large.

The Malacca Sultanate has been considered by historians as the climax of the Malay-Islamic civilization of that era.it had no comparison in the Malay Archipelago. Unfortunately, this civilization which was nurtured for more than a hundred years failed to leave behind much of her intellectual heritage to the later generation.

The Malay-Islamic intellectual heritage only existed after the Malacca Sultanate fell to the Portuguese in 1511. [3]The book Sejarah Melayu, considered as a book of great value and importance, was written in 1612, by Tun Seri Lanang, the then Bendahara of Johore. As a scholar of that era, he realized the importance of having these intellectual heritages written down. With great diligence and in earnest, he eventually succeeded in compiling the facts and information despite the limited sources of the reference and being under pressure, as he was then a prisoner of the Sultan of Acheh.

According to the Sejarah Melayu, Malacca was the center of learning and the propagation of Islam in the religion. [4]Many renowned scholars and treatises were mentioned in the annals. Besides that, events such as the parading of the books around the Malaccan townships were proof of the Sultans and public recognition of intellectual works. However, almost all the treatises cited in the Annals could no longer be found today. No attempts had been made to trace them to their original sources, for example, in their original languages such as Arabic, Persian or Hindi.[5]

Besides the Sejarah Melayu, two other books which discussed the customs and traditions of the Malays of that era have been found. They were the Hukum Melayu Melaka and the Undang-Undang Laut. However, both books were not mentioned in the Sejarah Melayu.

The above two books were very important to researchers as they provided and the achievements of the time. Both books also helped researchers comprehend the information mentioned in the Sejarah Melayu and at the same time provided clues that could help them measure the level of intellectual activities of that era.[6]

It can be observed that the scholars of that era were fluent in Arabic. The Sejarah Melayu related an event where a book entitled Arranged Jewel, written in Arabic, was taken to Malacca from Mecca and translated into Malay in a very short time.