An Analytical Study of the Obligatory Will (Waṣiyyat Wājibah) in Islamic Jurisprudence and Afghan Laws

بررسی وصیت واجب در فقه اسلامی و حقوق افغانستان

چکیده

Abstract

Bequest (waṣiyyat) and inheritance are among the most significant legal and jurisprudential issues recognized in Afghanistan’s legal system, which follows the principles of Islamic Sharia. According to the opinions of Hanafi jurists, making a will is considered recommended (mustahabb). However, in the modern era, a concept known as the obligatory will (waṣiyyat wājibah), derived from the Ẓāhirī school of thought and particularly from Ibn Ḥazm al-Andalusī, has been adopted into the personal status laws of some Islamic countries. This type of will is characterized by specific conditions and legal rulings. The obligatory will refers to the transfer of inheritance rights of a son or daughter who passes away before their parents, so that their share from the estate of the deceased parent is allocated to their own children—commonly referred to as “deprived grandchildren” (nawāsa bi-naṣīb). The main research question of this study is: How is the concept of the obligatory will treated in Islamic jurisprudence and Afghan law? This research employs a descriptive–analytical method using library-based sources. The findings indicate that Afghanistan’s legal system, following Islamic jurisprudence, acknowledges the institution of waṣiyyat wājibah to some extent. The results show that while certain jurists have regarded the will as obligatory based on legal and religious evidence, Hanafi scholars—supported by their own Sharia-based arguments—do not consider this type of will to be mandatory. Nevertheless, the Civil Code of Afghanistan (1355/1976) adopted the opinion of those jurists who affirm the obligation of such wills.

Keywords: Law, Jurisprudence, Will (Waṣiyyat), Obligation (Wājib), Obligatory Will (Waṣiyyat Wājibah).