Introduction: Elder Care and the Edgen in Islamic Central Asia
The first challenge in writing about the Islamic law of elder care is discovering an Islamic law of elder care. In the Qur’ān and well-proven hadith,Footnote 1 there are relatively few general references to elders outside of a kinship relationship.Footnote 2 Thus, it is difficult to say that Islamic law contains well-developed explicit doctrines regarding elder care outside of a general duty to give elderly people respect and poor people charity. Collections of Islamic legal opinions, or fatwā, opine on elder care under two primary topic headings: (1) nafaqah, the allotment of financial resources and caring for children, wives, parents, and grandparents; and (2) ‘ilm al-farā'i ḍ, the science of inheritance law. In both of these cases, however, elder care is incidental to the larger concerns, not the focus of the collected opinions.
Although a legal system might appear to have nothing to offer on a particular question, in our case, elder care, people often find ways to use whatever the legal system offers in order to achieve their goals. An example from the United States might illustrate this point. Prior to the creation of elder law regulations, social security, and Medicaid, elders in the United States who needed care often promised younger people a future bequest in exchange for that care.Footnote 3 The elderly were able to make the bargain of present care for future inheritance because Anglo-American law allows testators to bequeath their property without constraint.
Islamic law's strict inheritance system seemingly forecloses the popular option in Anglo-American law of asking a younger person, whether relative or friend, to provide care to an elder today in exchange for the promise of future inheritance from the older person's estate in the future. In contrast to Anglo-American law, Islamic law denies testators free transfer. Instead, the Qur’ān allots at least two thirds of a Muslim's estate without regard to testator intent. Thus, although the term Wa ṣiyyah is often translated into English as the legal equivalent of “will,” the concept of a “last will and testament” as understood in Anglo-American law has limited application in the Islamic law setting.Footnote 4 Rather than emphasize testator intent, Islamic law binds the faithful to allot their possessions in specific amounts, depending on kinship relationship.Footnote 5
Yet, despite the obstacles created by Islamic law's strict allotment system, devout Muslims throughout Central AsiaFootnote 6 routinely obtain their long-term elder care through keeping their youngest son, known as the edgen, at home, where he supports his parents throughout their retirement years, even paying for their funeral expenses and a series of afterlife rituals.Footnote 7 In exchange for their care, parents compensate the edgen by leaving him all their property at their death despite the Qur’ānic stipulation that each child receive strict inheritance shares—with sons receiving twice the allotments of daughters.Footnote 8
In order to examine this alternate system of inheritance, in place in Central Asia since at least the time of Alexander the Great, in the fourth century BCE, this article examines fatwās issued by and to contemporary Uzbek Muslims. These fatwās illustrate how Central Asian Islamic jurists employ a legal method known as ḥiylah, or legal ruse, in order to exploit the difference in Islamic law between a lifetime gift and inheritance. Through this particular legal maneuver, Central Asians maintain a pre-Islamic system of elder care that is, nonetheless, acknowledged as Islamic by all involved. The fatwās bolster a system of elder care that is nominally the responsibility of the youngest son, the edgen, but in ways that arguably end up placing women at a distinct disadvantage.
The contemporary Central Asian fatwās and the elder care practices presented in this article raise at least three questions of importance to Islamic law:
-
1. Is Islamic law static and uniform? Inquiry into Islamic law as static or dynamic, diverse or uniform, goes beyond the question of how Islamic law treats elders. The question of whether Islamic law is static is part of a controversy among scholars and jurists of Islamic law about the so-called closing of the doors to ijtihad, which, as detailed below, is creative use of evidentiary sources.Footnote 9 The view that Islamic law stopped accepting creativity and interpretation came to the United States through Joseph Schacht's Introduction to Islamic Law, which served as the standard understanding of Islamic law among American legal academics for much of the last half of the twentieth century.Footnote 10 Beginning at the end of the twentieth century, the belief that Islamic law closed the doors to ijtihād was disputed by many authors, including Wael Hallaq. Since then a significant part of many contemporary writings on Islamic law address the question of whether the article's findings support the idea of a closed legal system or give evidence that Islamic law is not static.
In the context of inheritance allotments, the question of whether Islamic Law is uniform arises from a fundamental rule: where the Qur’ān and hadith are clear, every Muslim is bound. Islamic law cannot simply ignore regional and cultural differences between practitioners where the Qur’ān and hadith are in accord. Instead, if one set of Muslims uses one set of rules for inheritance (or any other directive contained in the Qur’ān and hadith) and another group applies a different formula, those differences require explanation and reconciliation. Often this work is effected by a doctrine, called ‘urf, that allows local practices to count as Islamic law when those practices do not conflict with Islamic law. As is discussed later, ‘urf is not available to explain Central Asian elder-law practices.
-
2. Does the Central Asian practice of inheritance flowing to only one child—particularly the youngest son—demonstrate a creative legal practice, but one that undercuts other fundamental Islamic principles, such as inheritance rights for women?
-
3. How does the legal assignment of elder-care responsibility to the edgen square with the practical reality that most of the actual elder care work is done by women in Central Asian cultures, and what effects does this female work obligation have on women's political rights and social equality?
This article presents the story of an elder-care system that has survived the advent and demise of some of the most powerful empires on earth through creative legal interpretation that reconciled Islamic law and local custom. But Central Asia achieved this reconciliation of pre-Islamic and Islamic law in part through the ongoing exploitation of female labor and the denial of female financial protection through inheritance rights.
Islamic Law of Elder Care and Inheritance
By the tenth century CE, Islamic jurists generally agreed that deriving legal opinions begins with the Qur’ān, so that opinions based on the Qur’ān have higher standing than those based on other sources of law.Footnote 11 If the Qur’ān is silent, then the jurist turns to the hadith, which are, as noted earlier, the traditions of the Prophet Muhammad.Footnote 12 When both the Qur’ān and hadith are unclear or silent, Islamic jurists developed other sources to support their legal opinions. As noted above, this process of deriving legal rules using sources other than clear statements from the Qur’ān and hadith is called ijtihād, or utmost effort. The term ijtihād describes the jurist's creative use of approved evidentiary sources to produce a legal opinion.Footnote 13
The Qur’ān imposes an obligation to respect the elderly without regard to kinship. Nevertheless, although all elders deserve respect, within the Qur’ān parents are the central object of a faithful Muslim's attention. Indeed, several Qur’ānic verses place respect and care for parents directly after obedience to God. Specifically, the Qur’ān states “Your Lord has decreed, that you worship none save Him, and (that you show) kindness to the parents. If one of them or both attain to old age with you, say not ‘Fie’ unto them nor repulse them, but speak unto them a gracious word.”Footnote 14 It further instructs readers to “be good to the parents and next of kin,” to “show kindness unto your parents,” and that “your Lord has commanded that you shall not serve (any) but Him, and goodness to your parents.”Footnote 15 These verses emphasize parental care as a sacred obligation, especially toward mothers, as in the passages that read:
And We have enjoined upon man concerning his parents—His mother bears him in weakness upon weakness, and his weaning is in two years—Give thanks unto Me and unto you parents. Unto me is the journeying.Footnote 16
And We have commanded unto man kindness toward parents. His mother bears him with reluctance, and brings him forth with reluctance, and bearing of him and the weaning of him is thirty months, till, when he attains full strength and reaches forty years. He says: My Lord! Arouse me that I may give thanks for the favors wherewith You have favored me and my parents, and that I may do right acceptable unto You. And be gracious unto me in the matter of my seed. Lo! I have turned unto You repentant, and lo! I am of the Muslims.Footnote 17
The hadith echo the Qur’ān by giving parents high status and making their care a sacred act that bears on the believer's corporeal and spiritual life.Footnote 18 As in the Qur’ān, the hadith identify care of one's parents as a sacred responsibility akin to worship. One such hadith states:
Abdullah bin ‘Umar said: “A man came to the Prophet seeking permission to go for jihād. So the Prophet said: ‘Do you have parents (living)?’ He said: ‘Yes.’ The Prophet said: ‘Then it is for them that you should perform jihād.’”Footnote 19
Another hadith makes the argument that a child's first duty is to her parents through a pointed repetition of the obligation:
Bahz ibn Hakim's grandfather said, “I asked, ‘Messenger of Allah, to whom should I be dutiful?’ ‘Your mother,’ he replied. I asked, ‘Then whom?’ ‘Your mother,’ he replied. I asked, ‘Then whom?’ ‘Your mother,’ he replied. I asked, ‘Then whom?’ ‘Your mother,’ he replied. I asked, ‘Then to whom should I be dutiful?’ ‘Your father,’ he replied, ‘and then the next closest relative and then the next.’”Footnote 20
Yet another hadith speaks of the duty in terms of the reward that fulfilling ones duty to parents brings, stating:
If any Muslim obeys God regarding his parents, God will open two gates of the Garden for him. If there is only one parent, then one gate will be opened. If one of them is angry, then God will not be pleased with him until that parent is pleased with him. He was asked, “‘Even if they wrong him?’ ‘Even if they wrong him’ he [the prophet] replied.”Footnote 21
Thus, while the Qu'rān and hadith have much to say on the issue of respect for one's elders and providing them good treatment and care, there are no specific provisions for how this care should be provided. As a result, different Muslim majority societies have developed different practices for ensuring that elders are cared for in their old age. In Central Asia, a pre-Islamic tradition of elder care was retained among the majority of the population following their adoption of Islam.
Competing Interpretations: Islamic Law, Central Asian Customary Law, and the Edgen
By the seventh century CE, Muslim armies had swept across North Africa to the West and the Indian subcontinent and China to the East.Footnote 22 As is true of many colonial empires, these Muslim conquerors of Central Asia sometimes imposed their law and sometimes left local law in place. The edgen tradition, which existed before the Arab invasions of Central Asia, was one of the local customs that survived throughout the first four centuries of Muslim rule.Footnote 23
Four centuries after the Arab occupation, the Mongol invasion brought the Great Yasa to Central Asia and reinforced edgen tradition. The Great Yasa is known as the law of the Mongols,Footnote 24 and it is said to have come directly from Genghis Khan as he drove West through Asia bringing the law of the nomads with him.Footnote 25 The Great Yasa brought an inheritance scheme that was more in line with Central Asian customary law, including the edgen tradition, than was the Islamic law that had ruled the area for the past four hundred years. In fact, the Great Yasa and Central Asian customary inheritance law were remarkably similar in that they focused on children supporting their parents throughout the parents' lives in exchange for the parents' home and lands when the parents died.Footnote 26
Despite the arrival of the Great Yasa to Central Asia, Islamic law continued to be part of Central Asian society, including the edgen system as incorporated into Islamic law. Nevertheless, in light of the differences in inheritance principles between the two systems, this development begs the question of how these two inheritance schemes became reconciled.Footnote 27
One possibility is through the practice of ijtihād, or legal creativity.Footnote 28 As described above, ijtihād is the formation of an opinion by a jurist using juridical creativity based in accepted sources of Islamic law. As noted, the method of ijtihād called ‘urf makes room for local practice within Islamic law if that local practice does not contradict established Islamic principles. Nonetheless, given their vastly different and conflicting rules for dividing estates—Central Asian customary law directing the entire bequest to the youngest son and Islamic law requiring strictly defined shares among children with sons receiving twice the allotment of daughters—‘urf could not resolve the conflict between Islamic law and Central Asian inheritance customs. Neither ‘urf nor other forms of ijtihād could overturn Islamic inheritance allotments because those portions are clearly stated within the Qur’ān, and ijtihād is a method of deriving legal rules only in cases where there is not clear guidance from the Qur’ān and hadith.
If Islamic jurists were not able to incorporate the edgen tradition through the legal creativity of ijtihād, then how did the tradition both survive and come to be considered “Islamic” by Central Asian Muslims? In the next section, we examine three Uzbek fatwās that show how Islamic jurists are using an alternate form of reasoning called ḥiylah, or legal ruse, to maintain the edgen system within Islamic law.
Three Fatwās on the Edgen Tradition
A fatwā is a genre in Islamic law consisting of an opinion from a jurist to a believer issued at the believer's request. Authors, their scribes, or students, often compile fatwās into collections. Some fatwās' influence continue for centuries while new fatwās continually emerge as Muslims ask their religious leaders for answers on matters unheard of in past generations.
As discussed previously, because the Qur’ān explicitly mandates how an estate's assets are distributed, Islamic law appears to foreclose the option of trading present care for future prospects.Footnote 29 Yet, today Central Asians who strongly identify as Muslims routinely employ traditional inheritance practices that contradict the Islamic law prescribed inheritance allotments. Instead of bequeathing strictly designated shares to their children as required by the Qur’ān, parents ensure their own long-term care by exchanging future inheritance to the youngest son for present elder care.
The three fatwās reproduced below demonstrate how Uzbek Islamic jurists shift attention from the Qur’ānic rules of inheritance and towards the Qur’ānic rules of gifts in order to produce opinions that uphold the culturally appropriate pre-Islamic result without resort to ijtihād. What the Uzbek jurists employ instead of ijtihād in the form of ‘urf, which was foreclosed to them because of the vast differences between Islamic and traditional inheritance rules, is ḥiylah, legal ruse.
Ḥiylah originates in the Ḥanafī madhhab, or school of Islamic jurisprudence, which is by far the dominant school of Islamic jurisprudence in Central Asia. Linguistic translations of the term ḥiylah include trickery, deception, and stratagem. The Ḥanafī definition contemplates an opinion in which the jurist does not reveal his legal method to the inquirer but strives to aid the believer by providing a beneficial solution.Footnote 30 Originally, ḥiylah was criticized by other Sunni schools such as the Ḥanbalī and the Shāfi‘ī. In later legal literature, a few jurists from other schools (madhhabs) began to employ ḥiylah, so that the method spread beyond the Ḥanafī madhhab.
Joseph Schacht described ḥiylah as
[T]he use of legal means for extra-legal ends, ends that could not, whether they themselves were legal or illegal, be achieved directly with the means provided by the sharī‘ah. The “legal devices” enabled persons who would otherwise, under the pressure of circumstances, have had to act against the provisions of the sacred Law, to arrive at the desired result while actually conforming to the letter of the law. For instance, the Koran prohibits interest, and this religious prohibition was strong enough to make popular opinion unwilling to transgress it openly and directly, while at the same time there was an imperative demand for the giving and taking of interest in commercial life. In order to satisfy this need, and at the same time to observe the letter of the religious prohibition, a number of devices were developed. One consisted of giving real property as a security for the debt and allowing the creditor to use it, so that its use represented the interest; this transaction forms a close parallel to the sale with the right of redemption.Footnote 31
In the case of Central Asian inheritance practices, an imam might employ ḥiylah in order to meet both the requirements of Islamic law and the cultural need to preserve the edgen system, since it is the only elder care system that is viable, available, and enforceable, if only through community and family pressures in many Central Asian contexts.Footnote 32 The three fatwās below, offered by an Uzbek imam, avoid placing the parents' house and properties within Islamic inheritance by instead classifying the transfers as gifts.Footnote 33 Each opinion is a type of legal ruse that supports the pre-Islamic inheritance system. These three fatwās are quite typical and representative in their reasoning and their results. Although the fatwās explicitly acknowledge the inheritance allotments spelled out in detail in the Qur’ān, they use ḥiylah in order to legitimize passing the parents' estate to the youngest son although that result directly contradicts the clearly prescribed Islamic Inheritance system.
First Fatwā: Equal but Gendered Allotments Required by Law
This fatwā sets up the Islamic Law rule that children have strictly designated inheritance shares with sons receiving twice the allotments of daughters.
Question:
If deceased parents failed to allot their property in accordance with Islamic inheritance law, is the estate divided equally among the parents' surviving sons and daughters?
Answer:
What is allotted during life is not inheritance, and is not subject to the Qur’ānic verses regarding the distribution of property on death. Instead property passed during life is a gift [hadiyyah, hibah].
Property that is left after death is subject to allotment in accordance with the rules of inheritance. The child's share of inheritance differs as between sons and daughters: to one son, the shares of two daughters are given. In the Noble Qur’ān it is stated as “to each man, shares of two women will be given.”Footnote 34
Second Fatwā: Legal Ruse and the Creative Distinction between Gift and Bequest
In this fatwā the distinction between the making of gifts and bequests is elaborated.
Question:
We are four brothers and a sister. Our father is alive.
Our father helped us all to have families and houses, except my youngest brother, who is in my parents' house.
First question:
Are the houses that our father built for us considered inheritance or a gift?
Second question:
If my father dies [may God give him a long life] should three brothers and a sister receive inheritance from the house of my father?
Answer:
Whatever is given while alive is considered a gift.
After a person's death his properties are allotted in accordance with the Qur’ān. If your father gives the house to the youngest son as a gift, then the other children have no right to that property through inheritance.Footnote 35
Third Fatwā: Reconciling Customary Law and Islam
This fatwā reconciles the pre-Islamic customary result with Islamic law.Footnote 36
Question:
I am a father of eight children, three daughters and five sons. I thank God that I helped them all to have houses and families. I helped four of my sons to get houses and I also helped them in the weddings of their children. I have not helped my fifth son to have a house. That is why I am planning to give my own house and properties to my fifth son as an inheritance share. Is what I am doing correct?
Answer:
Give it as a gift. Inheritance is a property that is given posthumously.Footnote 37
As Joseph Schacht described, the three fatwās above each employ ḥiylah by taking two explicit rules within Islamic law—the law of inheritance and the law of gifts—and combining them. The result is to enable families, who would otherwise, have to violate Islamic law, to arrive at the desired result while actually conforming to the letter of Islamic law.
Islamic Law and Elder Care: Lessons from Central Asia
Having reviewed how the edgen tradition comes to be incorporated into Islamic law in Central Asia despite the apparent tension between inheritance rights under the edgen tradition and those under traditional understandings of Islamic law, we now turn to the themes of the three questions posed in the introduction: (1) stasis and creativity, (2) universality and context, and (3) gender.
Creative Avoidance of Stasis
These fatwās are, first of all, significant for the question raised in the introduction about whether Islamic law is static. Although the Qur’ān mandates equal inheritance shares between children—with sons receiving twice the allotments of daughters—the three fatwās all provide legal support for a system that favors the caretaker youngest son over his siblings. The three fatwās thus raise the question of whether Islamic law is frozen in these cases or, as seems more likely, that the jurists appear to follow the letter of the law while actually supporting a completely different customary inheritance system through their use of ḥiylah.
In the scenarios addressed in the three fatwās above, Uzbek imams honor sharī‘ah and fiqh, understanding, while applying creative reasoning to a centuries-old problem: the interplay of custom and Islamic law.Footnote 38 The inheritance system supported by the three fatwās adheres to the letter of Islamic law on several fronts. First, the Central Asian inheritance system reported in the fatwās meets the exact letter of Islamic law by taking advantage of the difference between rules for gifts and rules for inheritance. By advising transfers of property to the youngest son during the father's life, the imams circumvent the requirement of strict allotments to siblings—with sons receiving twice the allotments of daughters—and allow the edgen tradition to comport with Islamic requirements. Next, the Central Asian inheritance system as reported in the fatwās meets one of Islamic law's primary objectives: transparency. Gifts passed from fathers to youngest sons during the father's life are known to all family members, who have the opportunity to object openly during the father's life. Contrast the Anglo-American inheritance system, in which bequests are often unknown until after the testator has died, the ability to discover intent directly is closed, and a challenge is often complicated and costly. Finally, the three fatwās exhibit sophisticated legal reasoning long sanctioned by the Ḥanafī madhhab. By using Islamic law's distinctions between gifts and inheritance, the imams allow the people's long held customs to flourish within Islamic law.
For those interested in the law and society movement, the edgen system is an example of legal pluralism. John Griffiths describes legal pluralism as
the omnipresent, normal situation in human society—is one in which law and legal institutions are not all subsumable within one “system” but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another, so that the “law” which is actually effective on the “ground floor” of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism.Footnote 39
In other words:
Legal pluralism refers to the deceptively simple idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one “law” or legal system.Footnote 40
The overlay of the edgen system on Islamic law in countries that also have their own state sponsored law is an example of legal pluralism. The state does not enforce Islamic law in Central Asia, nor does it enforce the edgen system. Rather, the people's felt need for elder care that complies with their religion creates their need that the imam answers with ḥiylah.
A Challenge to Uniformity
A second question of importance to Islamic law that these contemporary Central Asian fatwās raise is whether Islamic law is uniform in matters that the Qur’ān and hadith explicitly address. Islamic law requires uniform legal doctrines without regard to local practices when the Qur’ān and hadith are in explicit accord. The Central Asian people who use the inheritance system portrayed in this article accept the system as Islamic. The mere fact that the people involved rely on approval from religious leaders for their contemplated transfers demonstrates how seriously these believers wish to comply with their faith. Yet the act of parents transferring all of their property to the youngest son differs from the inheritance allotments contained in the Qur’ān and hadith just as the Central Asian example differs from practices in other parts of the Muslim world.Footnote 41
Different Muslim communities are experimenting with culturally specific solutions to the problem of elder care. To the west of Central Asia, in the Arab Middle East, Radwa Elsaman and Mohamed ‘Arafa report that some Muslim countries contemplate international conventions on human rights as the basis for state-sponsored elder-care systems. Nevertheless, Elsaman and ‘Arafa also report that these conventions are silent on elder care.Footnote 42 Instead, the conventions emphasize human rights concerns that apply to the elderly such as the right to health care or the right to physical safety. As with the Central Asian example, Elsaman and ‘Arafa find that Arab governments rely on family to provide most elder care.Footnote 43 To the east of Central Asia, Bowen reports that Indonesia's inheritance system restricts lifetime gifts.Footnote 44 The Indonesian legislature hoped that restrictions on lifetime gifts would discourage people from trying to avoid the required Islamic inheritance allotments. By restricting lifetime gifts, the Indonesian legislature undercut self-help elder-care systems. Accordingly, the elder care example does not support uniformity in the Islamic law of elder care.
Rather, the Central Asian example supports the observation that legal pluralism comes from many sources both within and outside the nation state. Islam explicitly seeks to overlay the nation state and local practice with religious law. The nation state also has a strong interest in filling the legal landscape with its own rules and procedures. The Central Asian edgen system of elder care subverts both religious law and state law with a unique scheme that answers the universal question—how to care for the elderly—with decidedly local solutions.
A Gendered Paradox
To understand the issue of gender equity created by the edgen tradition, it may be helpful to revisit, briefly, how the system functions. In the most pleasant and hopeful version of the edgen story, strong families with many children prepare each child in turn to enter adult life. The family gives each male a healthy childhood along with full support until marriage. Before marriage, the family gives each son all the financial support required to marry, including education and the mahr, or dowry, which goes directly to the bride for her financial protection. After marriage, the family supports the young couple until the birth of their first child when the new family moves into a house provided by the husband's parents. Throughout the couple's life, the in-laws intercede with monies for grandchildren, marriages, households, etc. During their married lives, new brides and young mothers are financially protected by the mahr they received at their marriage, their husbands', fathers', or brother's financial support, and a share of their parents' estate through Islamic inheritance allotments.
The edgen receives all the benefits conferred on his elder brothers except the new house after the birth of his first child. Instead of leaving the parental home as his elder siblings before him, the edgen remains at home to tend to his parents for the rest of their lives. Then, after a long and healthy life with many grandchildren and great grandchildren all receiving financial help from the parents and grandparents, the elderly couple dies, the edgen inherits their home and lands, and all is right with the world.Footnote 45
Under the more realistic version of the edgen system, most elder care is performed by women who support the system through their labor and the loss of their Islamic financial protections. Women often become the de facto caregivers, performing the actual work that is expected of the edgen. Because the system removes the financial protections for women usually guaranteed under Islamic law by marriage and inheritance, many women have no opportunity to remove themselves from this role of servitude.
In the first instance, an edgen's wife becomes his parents' caretaker.Footnote 46 Within extended family units, young brides often carry a large load of family responsibilities, including working outside the home, performing all housework within the home, and caring for her in-laws for at least the portion of her married life before the birth of her first child.Footnote 47 Indeed, if she is the wife of an edgen, she will spend the rest of her in-laws' lives performing elder care.Footnote 48
As noted, under traditional Islamic law principals, a married woman receives financial protection in the form of mahr, the money the young bride receives from her husband's family However, in poor and middle-class households, a woman is rarely allowed to keep her mahr. Instead, the bride's father will often take her mahr and pay the money to her brother's betrothed, so that her father can fulfill his mahr obligation and her brother can get married. Accordingly, the young bride of an edgen can find herself without mahr and in perpetual servitude to her in-laws. Even if her own parents are in need, she has no time to give them.Footnote 49
As the years go by a woman's next opportunity for financial support comes in the form of a daughter's right to inherit from her parents. The edgen tradition overtakes that right as each sister is left without any inheritance because her parents' property goes to the youngest son. Although parents give their sons mahr for the bride, food and shelter for the first years of marriage, and a house after the birth of the first child, parents often leave their departing daughters without any of the three financial protections that the Qur’ān and hadith specifically require. As discussed throughout this article, this denial of inheritance rights to daughters contravenes Islamic inheritance law requirements.
Thus, one striking part of the Central Asian inheritance system of elder care is that it directly undercuts what Islamic scholars and many Muslims identify as one of its most important contributions to the ancient world: heightened respect for women. The first fatwā reported above shows the importance of respect for women as part of Islamic self-consciousness. Directly after explaining that the Qur’ān requires strict allotments of inheritance to children without regard to whether the children are in financial need and whether the children took care of their parents, the imam continues:
Here God the Most High has established a great justice through sharī‘ah. Until Islam and even today in many countries, there is no inheritance to women. Islam demonstrates its appreciation of women through inheritance allotments.
It is said that in order to be just in the giving of inheritance the Qur’ān takes note that sons are responsible for their parents' lifelong care, including looking after them, serving them, burying them, and meeting other expenditures. In addition, sons are also responsible for making a family, including giving mahr so that their own sons may marry, paying for the wedding party, and providing general financial support. In addition to that, it is the son's responsibility to care for his sisters when they are in financial need. Fathers protect daughters before marriage and husbands protect wives after marriage. Mahr and other wedding gifts protect married daughters in addition to their lack of financial responsibility. In light these legal responsibilities of men in families, sharī‘ah specifies that inheritance after the death of the parents is to be applied so that a son receives the shares of two daughters.Footnote 50
The imam's explanation of the inheritance allotments confirms that the daughter's share is a material expression of female right rather than of female need. The imam tells us that since fathers and husbands support daughters throughout their lives, female inheritance rights are not necessary for women's financial support, but rather Islamic law provides inheritance to daughters as a matter of right.
The daughters' inheritance shares under Islam serve a different purpose than financial support alone. By establishing a female right to inheritance, Islam sends a signal to the world that females are deserving of respect not just in words but also in property rights. When we understand the Islamic inheritance allotments to daughters as a sign of respect, then the fatwās support for Central Asian inheritance practices becomes more than clever lawyering that helps everyone equally. Instead, the fatwās place the provision of elder care above the material rights of women. Although the imams claim that female inheritance rights are important, they undercut female inheritance when they support a traditional inheritance system that they know will leave females doing all the elder-care work and losing their inheritance rights as well.
There is a gendered paradox in a system that places responsibility for elder care securely in the hands of men, namely the youngest son, the edgen, but in ways that end up disadvantaging women, who do the bulk of the actual elder-care work. The reality is that females often leave the family home with nothing. As noted, the Islamic mahr is as likely to go to the father in order to pay a brother's marriage fees as to go to the bride for her financial protection. Without inheritance, female family members lose two of the most important financial provisions that operate in their favor through the Qur’ān and hadith.
Perhaps the primary argument against legal ruse is that when the Qur’ān and hadith are explicit, God himself has spoken. The basis and justification for legal creativity is, above all, to do good for the people. This is an argument against Central Asian legal creativity in the arena of elder care. The edgen system, by placing the locus of responsibility for elder care in the youngest male son, ends up in practice pitting two cherished groups against one another. The edgen system burdens women in order to benefit the elderly.
Conclusion: Of Edgens, Ijtihād, and Disinherited Daughters
The Qur’ān and the hadith are the foundation of Islamic law. When the Qur’ān and hadith demand that Muslims respect the elderly and give poor people charity, they provide the moral underpinning for an Islamic elder care system. Despite these injunctions to provide the elderly with care, neither the Qur’ān nor hadith explain how to provide elder care. Accordingly, despite the Islamic claim to universality, every Muslim society must look beyond the explicit recitations found in Qur’ān and hadith in order to uncover its own Islamic elder care system. From this need comes an invitation to ḥiylah, legal ruse.
The Central Asian elder-care system aptly illustrates indigenous law surviving for millennia, even in opposition to a wide variety of empires. The flourishing edgen elder-care system is particularly interesting given the population's clear commitment to Islamic practice and Islamic dominance of the entire region. The manipulations of Islamic law around the edgen system show both how devoted Central Asians are to Islamic teachings and how Central Asian Muslims seek out religious support from their imams for their traditional practices. In turn, Central Asian religious leaders structure their advice in order to assure believers of their Islamic compliance.
The edgen system demonstrates that Islamic law is neither frozen nor universal. Contemporary Central Asian Islamic jurists use ḥiylah in order to maintain an indigenous elder care system for the benefit of their Muslim practitioners. These manipulations offer more proof in support of the contemporary notion that Islamic law, at least as practiced in early twenty-first-century Central Asia, is not frozen. Further, Central Asian Islamic jurists support an indigenous elder-care system that differs from those in other Muslim regions. Hence, in the case of elder care, Islamic law is neither frozen nor universal.
Nevertheless, the Islamic leaders' support for the edgen tradition also presents a further question of Islamic law: Should an elder-care system rest primarily on the shoulders of female labor and female disinheritance? As practiced in Central Asia, the edgen tradition relies on female labor and disinherited daughters. The very core of Islamic self-consciousness includes the assertion that Islam changed the world by changing the view of women. The required inheritance allotment to daughters materially illustrates Islam's commitment to women. In contrast, the edgen tradition places women at economic peril while taking advantage of their labor. One result of the edgen tradition—elder care for parents— supports the goals of Islamic law. A second corresponding result of the edgen tradition—elder care created and supported by unpaid female work and disinheritance—is in opposition to the Islamic goal of respect towards women as shown in the female inheritance allotments. This remains a problem for the edgen system going forward.
Acknowledgments
Our thanks to Dr. Devin J. Stewart, associate professor of Arabic and Islamic studies, Emory University; Dr. Phillip Ackerman-Lieberman, assistant professor of Jewish studies and law, assistant professor of religious studies and affiliated assistant professor of Islamic studies and history, Vanderbilt University; Dr. Michael Brose, associate professor of history, University of Wyoming; Donohon Abdugafurova, graduate student, Emory University; the Vanderbilt Law School Brown Bag Series; and Beth Hickman, alumna, Vanderbilt University, for their help and support.
