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ISLAMIC LAW AND ELDER CARE IN THE CENTRAL ASIAN EDGEN SYSTEM

Published online by Cambridge University Press:  08 August 2016

Rahimjon Abdugafurov
Affiliation:
Doctoral Student, Emory University
Beverly Moran
Affiliation:
Professor of Law and Professor of Sociology, Vanderbilt University

Abstract

There is no uniform Islamic law of elder care. Instead, the Qur’ān and Hadith, the fundamental building blocks of Islamic law, create general obligations to support aged parents that each Islamic society must specifically produce in practice. Before Islam swept Central Asia, nomads developed an elder-care tradition that thrives to this day in the former Soviet States of Kazakhstan (population 17 million), Kyrgyzstan (5.7 million), Tajikistan (8 million), Turkmenistan (5.2 million), and Uzbekistan (30 million). In many instances, Islamic law inclines toward adopting local customs and traditions so long as these practices do not conflict with fundamental Islamic law principles. Islamic law's openness to local influence is stymied in the Central Asian example because the edgen system that undergirds Central Asian elder care directly conflicts with the Islamic law of inheritance allotments. This article explains the edgen system and how it conflicts with Islamic law. A prominent contemporary Central Asian Islamic scholar's legal opinions illustrate a device in Islamic law called ḥiylah, or a legal ruse. Through this ruse, Central Asian families are able to maintain traditional elder care practices while also complying with Islamic law. Nevertheless, as the article concludes, the Central Asian elder-care system is based on unpaid female labor and female disinheritance. Female inheritance is a central feature of Islamic law. Yet, the edgen tradition puts women at a disadvantage in terms of labor and inheritance that Islamic law seeks to avoid.

Type
SYMPOSIUM: GLOBAL LEGAL AND RELIGIOUS PERSPECTIVES ON ELDER CARE
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2016 

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References

1 The most prized source of Islamic law is a direct pronouncement from the Qur’ān. Next in terms of weight of evidence is a rule based on the words or actions of the Prophet known as the hadith and the sunnah. The term hadith is based on the three-letter root h-d-th, meaning “to pronounce” or “speak.” The term sunnah is based on the three-letter root s-n-n, meaning “to act” or “perform.” Together, sunnah and hadith make up the prophetic traditions. An entire portion of Islamic law known as isnād is devoted to the proper proving of hadith and sunnah. Proving is effected by showing a direct line from the reporter to the Prophet. For a further discussion of the sources of Islamic law and their uses, see Wael Hallaq, Sharī‘a: Theory, Practice, Transformation (Cambridge: Cambridge University Press, 2009), particularly chapter 1; see also, Muhammad Sallām Madkur, “Introduction to Islamic Law,” trans. Beverly Moran and Rahimjon Abdugafurov (unpublished manuscript, 2007). A further discussion of the sources of Islamic law is below in the section “Islamic Law of Elder Care and Inheritance.”

2 The following are prophetic traditions about the elderly in general, that is, without reference to kinship relations:

Anas b. Malik narrated: “An older man came to talk to the prophet, and the people were hesitant to make room for him. The Prophet said: ‘He is not one of us who does not have mercy on our young and does not respect our elders.’”

Muhammad ‘Isāal-Tirmīdhī, Jāmi’ al-Tirmīdhī (Riyadh: Dar al-Salam, 2007), 4:37, chapter 15, hadith number 1919.

Al-Hasan narrated from Abu Hurayrah that the Prophet said: “The rider gives the Salam to the walking person, and the walking person to the sitting person and the few to the many.” Ibn Al-Muthanna added in his narration “And the young one gives the Salam to the elder.”

Ibid., 5:95, chapter 14, hadith number 2703. Other sources refer to the oldest men leading prayers and speaking first at gatherings.

3 See, for example, Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (Cambridge: Harvard University Press, 2012).

4 For more details, see Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 173–74.

5 Qur’ān 4.11 and 4.12 directly relate to inheritance:

Allah charges you concerning (the provision for) your children: to the male the equal of the portion of two females, and if there be women more than two, and then theirs is two-thirds of the inheritance, and if there be one (only) than the half. And to his parents, a sixth of the inheritance, if he has a son; and if he has no son, and his parents are his heirs, then to his mother appertains the third; and if he has brothers, then to his mother appertains the sixth, after any legacy he may have bequeathed, or debt (he has been paid). Your parents or your children: you know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is Knower, Wise. (4.11)

And unto you belongs half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, has been paid). And unto them belongs the fourth of that which you leave if you have no child, but if you have a child then the eighth of that which you leave, after any legacy you may have bequeathed, or debt (you may have contracted, has been paid). And if a man or a woman has a distant heir (having left neither parent nor child), and he (or she) has a brother or a sister (only on the mother's side), then to each of the two (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or a debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) has been paid. A commandment from Allah. Allah is Knower, Indulgent. (4.12)

These and all subsequent quotations from the Qur’ān are from Muhammad Marmaduke Pickthall's translation, The Meaning of the Glorious Qu'ran, rev. ed. (Beltsville: Amana Publications, 2006), unless otherwise noted.

6 Central Asia refers to the five former Soviet Republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. Each of these nations has a majority-Muslim population primarily belonging to the Ḥanafi school of Sunni Islam. This article takes as its case study Uzbekistan.

7 See Proceedings of O.S.R.A.S., v. XIV, 207, as cited in Valentin A. Riasanovsky, Fundamental Principles of Mongol Law (Bloomington: Indiana University Publications, 1965), 39. The youngest son becomes responsible for taking care of parents and their life-cycle ceremonies, including funeral and funeral ceremonies, even after they pass away. Some such ceremonies could continue for years.

8 Ibid.

9 See discussion in Schacht, Introduction to Islamic Law, 70–73.

10 Ibid. 70.

11 Madkur, “Introduction to Islamic Law,” 10–15.

12 The hadith are classified based on their authenticity. The most authentic prophetic tradition has a complete chain of informants relating directly back to the Prophet (isnād). Traditions that lack a fully proven isnād are subject to doubt and might be rejected as distorted or fraudulent.

13 The methods used by Islamic jurists to perform ijtihād include

  • ijmā‘, or community (if a community of Muslim scholars unanimously agreed upon a legal question, this agreement rises to the level of Qur’ān and Hadith);

  • qiyās, or method of deriving law through analogy;

  • istiḥsān, or making a decision based on what is good for the community at large;

  • maṣlaḥah al-mursalah, or a common good;

  • ‘urf, or a local tradition;

  • shar‘un min qablinā, or laws of religions before Islam (of Judaism and Christianity);

  • madhhab ṣaḥabi, or opinions of the companions of the Prophet; and

  • ṣadd ḍara‘i, or preventing evil.

14 Qur’ān 17:23; Pickthall, p. 253.

15 Qur'an 75; Qur’ān 6:151; Pickthall pp. 126–27; and 17:23; Pickthall, p. 253.

16 Qur’ān 31:14; Pickthall, p. 388.

17 Qur’ān 46:15; Pickthall, p. 491.

18 This prophetic tradition, for instance, states:

Abu Umamah Al-Ansārī narrated from ‘Abdullah b. Unays Al-Juhnī who said: “The Messenger of God said: ‘Indeed among the worst of the major sins is Shirk [idolatry] with Allah, disobeying the parents, the false oath, and no one insists on taking an oath in which he swears, including the like of a wing of a mosquito (of falsehood) in it—except that a spot is placed in his heart until the Day of Judgment.’”

‘Isā al-Tirmīdhī, English translation of “Jāmi’ al-Tirmīdhī,” trans. Abu Khaliyl (Riyadh: Dar al-Salam, 2007), 5:334, chapters on the Qur’ānic exegesis, hadith number 3020.

19 Ibid., chapter 2, hadith number 1671, 3:416.

20 Muhammad ibn Ismail al-Bukhari, Imam Bukhari's Book of Muslim Morals and Manners, trans. Yusuf Talal DeLorenzo (Alexandria, VA: Al-Saadawi Publications, 1997), 2–3.

21 Ibid. The kind treatment of parents has rewards. One hadith reads:

“Every righteous child who casts a look of mercy and affection upon his parents shall be granted, for every look of his, rewards equivalent to that of an accepted Hajj.” Those around the Prophet questioned: “O’ Prophet of God! Even if he were to look at them a hundred times a day?” The Messenger of God (peace be upon him and his family) replied: “Indeed! God is the Greatest and Most Kind.” Just as pilgrimage cleanses a Muslim of his sins and enables him to go to Paradise, kind treatment of parents also ensures entrance into heaven. Thus, another hādith advises: “One, who follows the orders of God with regards to obeying parents, shall have two doors of Paradise opened up for him. And if there happens to be only one parent, one door of Paradise shall open up for him.”

Indeed, God himself derives pleasure from a parent's contentment.

Ibid., internal citations omitted.

Riḍā is a popular concept among Muslims. For example, when a name of an important person, not a prophet, is mentioned, a Muslim should say “May God be pleased with him.” As it contains three Arabic root letters, r, ḍ, and w, some scholars translate Riḍā as pleasure, others as blessing, or contentment.

This Qur’ānic verse shows God's contentment with the faithful:

Their reward with their Lord is gardens of perpetuity beneath which rivers flow, abiding therein forever; Allah is well pleased with them and they are well pleased with Him; that is for him who fears his Lord.

Qur'ān 98:8. This quote is taken from The Holy Qur'an, trans. M. H. Shakir (New York, Tahrike Tarsal Qur’an, Inc., 1983), available through the University of Michigan Library at http://quod.lib.umich.edu/k/koran/browse.html.

22 See Albert Hourani, A History of the Arab Peoples (Cambridge: Belknap Press, 1991).

23 Riasanovsky, Mongol Law, 10.

24 George Lane, Daily Life in the Mongol Empire (Westport: Greenwood Press, 2009), 205–26.

25 Morgan, D. O., “The ‘Great Yāsā of Chingiz Khān’ and Mongol Law in the Īlkhānate,Bulletin of the School of Oriental and African Studies 49, no. 1 (1986): 163–76CrossRefGoogle Scholar.

26 On the similarities of the Great Yasa and Central Asian customs, see Riasanovsky, Mongol Law, 10–39.

27 As Leila Ahmed writes in the case of Central Asia, Islam “did not bring radical change but a continuity and accentuation of the life-styles already in place.” Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 33.

28 It is also arguable that, during the period of Mongol rule the doors of ijtihād closed as Islamic scholars in Central Asia abandoned practices of ijtihād in favor of taqlīd, an interpretive method that emphasized the reproduction of earlier opinions as opposed to creating new law. The movement from ijtihād to taqlīd occurred earlier in other parts of the Muslim world. See Schacht, An Introduction to Islamic Law, 70–71. The thesis that the doors of ijtihād ever actually closed is, however, disputed. See Hallaq, Wael B., “Was the Gate of Ijtihad Closed?International Journal of Middle East Studies 16, no. 1 (1984): 341 CrossRefGoogle Scholar; Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).

29 For verses detailing the distribution of the estate, see note 5.

30 Schacht, An Introduction to Islamic Law, 78–82.

31 Ibid., 78–79.

32 It is important to note that the Central Asian elder-care system described in this article is not always (or ever) ideal. There are many incentives within the system for the youngest son and his family to harm or deprive the elderly parents, and the parents may leave the youngest son and his family with very little. Rafis Abazov, Culture and Customs of the Central Asian Republics (Westport: Greenwood Press, 2007).

33 These fatwās come from two websites, mainly for Uzbek-speaking Muslims, that provide such legal opinions, Isolm.uz (in Uzbek) and Fiqh.uz (in Uzbek). Muhammad Sodiq Muhammad Yusuf, former mufti of Central Asia, was the key person who answered all the questions before his death in 2015. His legal opinions are still available through these websites. Rahimjon Abdugafurov translated the three fatwās from Uzbek.

34 Muhammad Sodiq Muhammad Yusuf, “Is Inheritance Divided Equally between Daughter and Son?” Islom.uz, accessed August 2, 2015, http://islom.uz/content/view/1038/138/.

35 Muhammad Sodiq Muhammad Yusuf, “About Inheritance,” Islom.uz, accessed August 2, 2015, http://savollar.islom.uz/smf/index.php/topic,29781.0.html.

36 In this regard, please note that believers who request fatwās do not expect the Imam to recite generally known cultural facts. Thus, we would not expect the Imam to recite the conflict between gifts and inheritance in the context of the edgen tradition.

37 Muhammad Sodiq Muhammad Yusuf, “Giving the House to the Youngest Son?” Islom.uz, accessed August 5, 2012, http://savollar.islom.uz/smf/index.php/topic,30019.0.html.

38 Madkur, “Introduction to Islamic Law,” 23. Fiqh is the science of deriving Islamic law from the sacred texts.

39 Griffiths, John, “What is Legal Pluralism?Journal of Legal Pluralism and Unofficial Law 24 (1986): 39 Google Scholar.

40 Margaret Davies, “Legal Pluralism,” Oxford Handbook of Empirical Legal Research, ed. Peter Cane and Herbert Kritzer (New York: Oxford University Press, 2010), 805.

41 See, for example, Elsaman, Radwa S. and ‘Arafa, Mohamed A., “The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arab Practice,Marquette Elder's Advisor 14, no. 1 (2012), article 4: 153 Google Scholar. Elsaman and ‘Arafa describe how a number of Muslim countries have signed onto international conventions that contain the roots of a state-sponsored elder-care system. Ibid. John R. Bowen reports that Indonesia has adopted an inheritance system that restricts the use of gifts as a means of avoiding the required inheritance allotments. See Bowen, John R., “‘You May Not Give It Away’: How Social Norms Shape Islamic Law in Contemporary Indonesian Jurisprudence,Islamic Law and Society 5, no. 3 (1998): 382408 CrossRefGoogle Scholar. Joseph Schacht notes in An Introduction to Islamic Law that inheritance is one part of Islamic law that is often supplanted by local rules and customs. Schact, An Introduction to Islamic Law, 76–77.

42 See Elsaman and ‘Arafa, “The Rights of the Elderly in the Arab Middle East,” 32.

43 Ibid, 12–16.

44 See Bowen, “‘You May Not Give It Away,’” 387.

45 Riasanovsky, Fundamental Principles of Mongol Law, 39.

46 For more information on Uzbek women's roles, see “Culture of Uzbekistan,” Countries and Their Cultures, World Culture Encyclopedia, http://www.everyculture.com/To-Z/Uzbekistan.html.

47 Riasanovsky, Fundamental Principles of Mongol Law, 88.

48 Ibid., 88.

49 See Abazov, Culture and Customs.

50 Muhammad Yusuf, “Is Inheritance Divided Equally?”

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