Chapter 10. Death, goods and men in the legal thinking of fouqaha

Abstract

Fikh, which is usually translated as Muslim law, is doctrine that has been elaborated over the centuries by generations of theologian-jurists who expressed themselves on a certain number of questions concerning Muslim society in order to order its organisation and its working through the fundamental “sources” of Islam. Among the questions dealt with in this perspective, there are those that concern the event of death and it is useful to consider how this question is handled.
Thanks to the methodological approach (‘ilm usûl al-fiqh) followed by the fouqaha, it appears that the legal and the theological fit together but do not get confused. Thus, although the religious aspect cannot be ignored in the study of death as it is tackled by Muslim jurists, it will not, nevertheless, constitute the essential part of this report except to try to show how we pass from the eschatological to the normative.
This normative aspect which is particular to Muslim law shows that death, while constituting an event that is sometimes difficult for the family and friends of the deceased, is perceived by the fouqaha as a transitory situation from which life must continue to be organised and the activity of the living must pick up again. Although death is imposed on man, it must not, however, disturb the life of society as it is envisaged by the order intended by God. If the profane and the sacred seem then to come together at this other moment in the existence of the group, the fiqh nevertheless, while granting rights to the deceased, does not allow him to continue to govern the world of the living by provisions made before death.