Wills and the Individual Conscience

As David Conway has noted in this space, the past week has seen quite a brouhaha in the United Kingdom over the Law Society’s decision to issue guidelines for sharia-compliant wills.

The controversy has sparked commentary here as well. But there appears to be considerable confusion on this matter, resulting in some very ill-considered assertions—ones that could backfire on time-honored conservative principles. The message here must remain: “Look before you leap.”

The Law Society very specifically issued guidelines to lawyers serving clients who choose to craft wills that follow sharia rules. Thus they state:

Provided the will is signed in accordance with the requirements set out in the Wills Act 1837, there is nothing to prevent an English domiciled person choosing to dispose of their assets in accordance with Sharia succession rules (subject to any potential claim under the Inheritance (Provision for Family and Dependants) Act 1975, which only applies where the deceased died domiciled in England and Wales). You will have to obtain probate on the Sharia-compliant will, in the normal way. (See section 2.5)

The guidelines do not advocate the overturning of laws governing intestacy, but merely advise lawyers on how to follow the wishes of their clients without making a hash of those intentions.

This tracks with what conservatives in this country have long done, at least since the rejection of the ultra-conservative notion of primogeniture in colonial times. In the new Republic, very few (and not even Jefferson!) disputed the right of a private citizen to craft a will designating persons of his or her own choosing as heirs. And these documents can include all sorts of provisions that the person’s family members or others may find objectionable.

Wills have subsequently been written by individuals to fulfill all manner of intentions, religious or otherwise. Except for very unusual circumstances, only intestacy has been viewed as grounds for state interference in matters of inheritance.

There is one major modern source of dissent from this idea, however: Progressives who would like to break up what they believe to be the unfair advantages of the children of the wealthy. Does anyone remember Eugene Harlan Read?

Before we all scream and pull our hair out, we need to consider the full implications of what we are saying when we decry the liberty to write a will as one pleases for reasons of personal conscience. We could be inviting more of a backlash against testators than we realize . . .

Hans Eicholz is a historian and Liberty Fund Senior Fellow. He is the author of Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government (2001), and more recently a contributor to The Constitutionalism of American States (2008).

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Comments

  1. nobody.really says

    There is one major modern source of dissent from this idea, however: Progressives who would like to break up what they believe to be the unfair advantages of the children of the wealthy.

    “What they believe to be…”? I’m acquainted with arguments defending people’s rights to dispose of their property as they wish — that is, defending the right of the donor — but I have yet to hear that the recipients have a claim grounded in fairness to receive such gifts. Could someone elaborate?

  2. gabe says

    Who says it should be “fair?”

    Neither the state nor the morality police can correct all of the imbalances of life (nor should they try).
    What is more, one can assume (in most cases) that the bequests is done out of a sense of parental love – Oops, I forgot, Progressives do not support that either. After all, as the thief from Little Rock’s wife alleges “It takes a Village to raise a child” and they are doing everything in their power to make it so. Thus, the Village should decide who gets what out of Daddy’s money. Not that they would consider such a scenario for themselves and thier own privileged offspring. Oops again, THEY live in a DIFFERENT village than do we.

    No thanks,

    • nobody.really says

      Who says it should be “fair?”

      That’s a fine question — but a different question than the one I posed. You’re denying that unfairness is relevant; Eicholz seems to be denying that it exists.

      • gabe says

        You do have a point!
        I would go further and assert that much of life is based upon inescapable un-fairness!
        Heck, i should have been a major league shortstop (fill in whatever you wish_______) – but……….I ain’t!!!
        Or as Marlon Brando said, ” I cudda been a contenda.”

  3. gabe says

    Hans:

    Some of us who objected to Conway’s piece, at least myself, did so not because we believe that the State should support or not support such bequests but rather to point out that one should be careful when ‘incorporating” certain cultural peculiarities into our own legal codes and practices. Some have termed this insistent withering away of Western cultural norms as “Lawfare.”
    Can someone give their money away to a dog, for example, yes! However, that does not necessarily undermine some essential underpinnings of Western culture. Some Sharia based requirements may very well do so.
    My point is: If one wishes to act archaically, do so on your own. do not seek the imprimatur of the State.

  4. Hans Eicholz says

    Nobody misunderstood my prose. Sorry. I was not making any sort of claim about the fairness of particular claims on the part of particular recipients. Merely that there has been an argument by progressives that inheritances should be regulated or disallowed altogether for the sake of “social fairness.”

    On Gabe’s last comment: Is the Law Society acting under the “imprimatur of the State?” Here is how they describe themselves: “A new Charter in 1845 defined the Society as an independent, private body servicing the affairs of the profession like other professional, literary and scientific bodies.” See here: http://www.lawsociety.org.uk/about-us/our-history/

    Of course, some do claim that all corporations are merely appendages of government, having been granted articles of incorporation…but would we really want to say that?

    Alles ist immer so ganz kompliziert…

    • gabe says

      Thanks:

      No, I would not want to say that either.

      What however is the public’s perception? Are UK citizens as “impressed” or awed by the legal profession as are their American counterparts?

      Gee, I hope not!

      thanks again for the essay and reply.

      take care
      gabe

  5. says

    Messrs. Conway and Eicholz are undoubtably correct in this instance that allowing, or even facilitating, the drafting of sharia compliant wills is simply a particular case of a principle grounded in individual rights. It is reasonable however to at least question whether such allowances are always are innocuous, or whether they permit inferences that engender cultural conflict and decay. It seems neither silly nor pathological to question at what point accommodation becomes detrimental. It is fashionable to ridicule those who who realize that culture is not infinitely malleable, without ever considering that they might have a point.

    Some years ago, a boys basketball team from a small Jewish school caused great excitement among its fans and supporters by advancing to the state basketball tournament. This was tempered by growing anxiety that continued success would entail a game on the Sabbath, as dictated by the tournament schedule. Hand wringing and diversity lectures ensued. Suggestions that the organizing body accommodate religious observance were offered as not only reasonable, but also good manners and good sportsmanship. Anxieties inevitably led to talk of litigation and civil rights violations, as the state High School Activities Association declined to alter the scheduling (ostensibly because it would create hardships for out of town teams who would have to adjust their schedules). The crisis was averted when the team in question lost before being forced to play on Saturday or forfeit.

    The state activities association was accused of being inflexible and lacking compassion, but they may have had in the back of their minds <a href="http://articles.chicagotribune.com/2006-02-19/news/0602190395_1_private-schools-public-schools-girls-basketball&quot; a story from Chicago, about a girls’ basketball team from an Islamic school that forbade men in the gym during games. Even though no one probably wanted to say it, the tournament sponsors may have simply been trying to avoid more problematic demands for religious accommodation down the road, and thought it best to establish a limiting precedent, even if they looked like jerks for a while in the process. The decision was not above criticism, but it was not blatantly unreasonable either.

    Some interest cannot be accommodated except at the sufferance of others, and it is inevitable that demands for accommodation occasion conflicts. Demands can become symbolic (for example, in forcing photographers to record weddings to which they object), and when this happens it is not “lets just all get along” deference to diversity; it can become cultural aggression. At some point the sharp elbows are recognized for what they are.

    I would certainly agree that allowing lawyers to draft sharia compliant wills, by itself, is well within reasonable accommodation, just as it would be reasonable, by itself, to reschedule a basketball game in deference to religious belief. It is not the reasonable demands that are the problem; it is the unreasonable ones that demand the same consideration that give rise to the parasitic pathology.

    I think a society is entitled to demand some respect for its own institutions, culture and traditions, and to reject certain practices that are contrary to them. Female genital mutilation or infanticide or forced marriage do not become accepted in modern societies because everyone suddenly decides they are acceptable; they are established, if at all, by insidious precedents, in senescent cultures that do not well remember man’s past.

  6. gabe says

    From an Andy McCarthy piece in today’s NRO:

    “The purpose of Honor Diaries is to empower women by shining a light on the hardships they endure — including “honor” killings (i.e., murders over the perception of having brought shame to the family by violating Islamic norms), beatings, genital mutilation, forced marriage — particularly of young girls – and restrictions on movement, education, and economic opportunity. The film highlights authentic Muslim moderates struggling against the dead-end of Islamic supremacism.”

    Should we provide any support or recognition to these archaic notions and practices?

    As Z implicitly asks, Just how malleable are we or ought we to be?

    • gabe says

      Then again:

      Considering the Mozilla Firefox fiasco, ongoing as we read, when does toleration become “compulsory celebration” and forced malleability?

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