Child Marriage and the Shari'a
The whole troublesome issue of child marriage and the shari'a rose its ugly head again today based on a New York Times article yesterday, leading to the typical polemical remonstrations, one side indicating this was a distressing cultural phenomenon that had nothing to do with the shari'a and the other arguing that in fact Islam requires child marriage. It's not as easy as all of that, as I will try to show in these few lines.
First, it is amply clear that the classical shari'a among all Sunni schools of thought sanctions marriage at puberty, which is assumed to be age nine for girls. Some schools require the girl's consent, some do not, some allow the father to contract the marriage before nine but then give the girl an opportunity to repudiate the contract before nine (known as khiyar al bulugh, or the option at puberty), but I'm not sure precisely what all of this is about when you are talking about a nine year old in our times. Or so I thought. It actually does seem to mean something, when you get the random young girl courageous enough to go to a courthouse and demand a divorce--the fact that she has an option at puberty might then mean something. But it's fair to say, for a vast majority, there is little difference between choice and no choice at nine, most girls that age could barely grasp the consequences of marriage in a manner to make it a meaningful and informed choice as we understand that today.
Has Islam been alone on this child marriage thing? Of course not, and it would be easy to say everyone did this in earlier times, that standards were different, that ideas of normativity were different, that behavioral maturities were different, that if you are going to criticize medieval Muslims for child marriage, then we have to talk about medieval Christian practice or precisely how much families and women's rights and women's sexual rights in particular meant in the antebellum South less than two hundred years ago for slaves, as Jefferson's own example makes clear. And that's all well and good for us Muslims to say that, except that these problems now exist predominantly in Muslim societies, and they are justified in those societies on the basis of doctrines and the example of the Prophet Muhammad. If they weren't still all too common practices, if we Muslims didn't insist on sullying the Prophet's name through this sort of thing, then the issue wouldn't arise, it would be dismissed as an artifact of history. We do have a role in this, as a community.
Now having acknowledged that the mainstream position of the major Sunni Muslim schools continues to be marriage can be done at puberty, can we then look to the Yemeni example as being in fulfillment of doctrine, and other Muslims as being hopelessly deluded when trying to argue against this? Of course not. That is, while the Yemenese poverty stricken peasant may argue that he is permitted to marry off his daughter at 9 if he wants to because the shari'a says as much, and he'd be right in the mainstream saying that, he can't say, and doesn't say, he is required to do it. When asked why he does then do it, according to a Sana University study, three reasons are given, not one of which is related to Muslim doctrine and one of which in fact is grossly violative of it.
The three reasons given in the study are (i) fear of poverty, (ii) cultural attribution of a young bride as being the most malleable and therefore desirable, and (iii) fear that the daughter will be kidnapped and forced to marry someone else.
(i) is obviously not related to the shari'a, clearly fear of poverty is an economic issue, I don't want to be poor is not a statement derived from doctrine. (ii) is clearly not doctrinal either--you could argue that Islam requires women to be obedient to their husbands, but even then the conclusion that a nine year old is going to provide that level of obedience is a cultural one or at most a sociological one, not a religious one.
As for (iii) it's a pretty gross violation of the shari'a. While you can say that a woman's consent to marriage is not sufficiently respected in Islam, while that argument can be made, the idea that a father's consent is not respected is under pure doctrine (whatever that is) just plain stupid. It's all about the father, even when he cannot force the marriage, he can stop it, the shari'a almost never allows a woman to contract a marriage without the father's consent, all Shi'a and Sunni schools I think accept this (at least for a woman never previously married, that is). So the idea that strangers can just walk in, kidnap the daughter, marry her to someone else and not have that marriage immediately declared invalid (fasid) without the father's consent is well beyond what doctrine has to say. Lawlessness in Yemen surely has something to do with that as well. Clearly doctrine and the cultural, political, economic and social conditions intermingle to create this set of Yemeni practices. Neither doctrine alone, nor "culture" alone explain it.
In vastly different cultural, political, economic and social conditions, the praxis bears no resemblance to what happens in Yemen, and there are subtle shifts in doctrine. Go to Islamists in Iraq, in Baghdad, folks I know pretty well after two years in the country, and ask them if a girl can be married off at nine in theory, and more or less you get a long, apologetic, highly conditional yes. Where in Yemen key obstacles to child marriage (like a father's consent) are sort of waved away, in an urban society, even among the pious, every obstacle is stated and emphasized, including the puberty option.
What is more, if you ask that same Islamist if he will marry off his daughter at nine, he might well shoot you for being so disrespectful. That does NOT mean he is happy with current Iraqi law and its marriage age at 18, he's not a secularist, he wants religious rules to govern family affairs, but at the same time, his own urban society wouldn't have that mean much. It might mean a great deal elsewhere in the country, it might well be devastating to girls in the countryside (though not clear given how much child marriage happens out there extralegally anyway) but to him, this facet of the shari'a won't matter. In that whole part of Iraqi society, it won't matter, the conditions would never sanction such a marriage.
Move over to the U.S., and the whole traditional doctrine starts to crumble. Muslims don't even want to hear the possibility of child marriage, and adopt liberal positions that are out of the mainstream to justify their own conclusions, from the ideas of folks like Fazlur Rahman and Fatima Mernissi, that it is not Islamically sanctioned period.
So in family law, and on child marriage in particular, does doctrine matter to help perpetuate the practice? Sure, but not in isolation. Legal doctrine, Muslim or American, should never be viewed in isolation, at least if you're trying to understand the world as it actually exists.
HAH
First, it is amply clear that the classical shari'a among all Sunni schools of thought sanctions marriage at puberty, which is assumed to be age nine for girls. Some schools require the girl's consent, some do not, some allow the father to contract the marriage before nine but then give the girl an opportunity to repudiate the contract before nine (known as khiyar al bulugh, or the option at puberty), but I'm not sure precisely what all of this is about when you are talking about a nine year old in our times. Or so I thought. It actually does seem to mean something, when you get the random young girl courageous enough to go to a courthouse and demand a divorce--the fact that she has an option at puberty might then mean something. But it's fair to say, for a vast majority, there is little difference between choice and no choice at nine, most girls that age could barely grasp the consequences of marriage in a manner to make it a meaningful and informed choice as we understand that today.
Has Islam been alone on this child marriage thing? Of course not, and it would be easy to say everyone did this in earlier times, that standards were different, that ideas of normativity were different, that behavioral maturities were different, that if you are going to criticize medieval Muslims for child marriage, then we have to talk about medieval Christian practice or precisely how much families and women's rights and women's sexual rights in particular meant in the antebellum South less than two hundred years ago for slaves, as Jefferson's own example makes clear. And that's all well and good for us Muslims to say that, except that these problems now exist predominantly in Muslim societies, and they are justified in those societies on the basis of doctrines and the example of the Prophet Muhammad. If they weren't still all too common practices, if we Muslims didn't insist on sullying the Prophet's name through this sort of thing, then the issue wouldn't arise, it would be dismissed as an artifact of history. We do have a role in this, as a community.
Now having acknowledged that the mainstream position of the major Sunni Muslim schools continues to be marriage can be done at puberty, can we then look to the Yemeni example as being in fulfillment of doctrine, and other Muslims as being hopelessly deluded when trying to argue against this? Of course not. That is, while the Yemenese poverty stricken peasant may argue that he is permitted to marry off his daughter at 9 if he wants to because the shari'a says as much, and he'd be right in the mainstream saying that, he can't say, and doesn't say, he is required to do it. When asked why he does then do it, according to a Sana University study, three reasons are given, not one of which is related to Muslim doctrine and one of which in fact is grossly violative of it.
The three reasons given in the study are (i) fear of poverty, (ii) cultural attribution of a young bride as being the most malleable and therefore desirable, and (iii) fear that the daughter will be kidnapped and forced to marry someone else.
(i) is obviously not related to the shari'a, clearly fear of poverty is an economic issue, I don't want to be poor is not a statement derived from doctrine. (ii) is clearly not doctrinal either--you could argue that Islam requires women to be obedient to their husbands, but even then the conclusion that a nine year old is going to provide that level of obedience is a cultural one or at most a sociological one, not a religious one.
As for (iii) it's a pretty gross violation of the shari'a. While you can say that a woman's consent to marriage is not sufficiently respected in Islam, while that argument can be made, the idea that a father's consent is not respected is under pure doctrine (whatever that is) just plain stupid. It's all about the father, even when he cannot force the marriage, he can stop it, the shari'a almost never allows a woman to contract a marriage without the father's consent, all Shi'a and Sunni schools I think accept this (at least for a woman never previously married, that is). So the idea that strangers can just walk in, kidnap the daughter, marry her to someone else and not have that marriage immediately declared invalid (fasid) without the father's consent is well beyond what doctrine has to say. Lawlessness in Yemen surely has something to do with that as well. Clearly doctrine and the cultural, political, economic and social conditions intermingle to create this set of Yemeni practices. Neither doctrine alone, nor "culture" alone explain it.
In vastly different cultural, political, economic and social conditions, the praxis bears no resemblance to what happens in Yemen, and there are subtle shifts in doctrine. Go to Islamists in Iraq, in Baghdad, folks I know pretty well after two years in the country, and ask them if a girl can be married off at nine in theory, and more or less you get a long, apologetic, highly conditional yes. Where in Yemen key obstacles to child marriage (like a father's consent) are sort of waved away, in an urban society, even among the pious, every obstacle is stated and emphasized, including the puberty option.
What is more, if you ask that same Islamist if he will marry off his daughter at nine, he might well shoot you for being so disrespectful. That does NOT mean he is happy with current Iraqi law and its marriage age at 18, he's not a secularist, he wants religious rules to govern family affairs, but at the same time, his own urban society wouldn't have that mean much. It might mean a great deal elsewhere in the country, it might well be devastating to girls in the countryside (though not clear given how much child marriage happens out there extralegally anyway) but to him, this facet of the shari'a won't matter. In that whole part of Iraqi society, it won't matter, the conditions would never sanction such a marriage.
Move over to the U.S., and the whole traditional doctrine starts to crumble. Muslims don't even want to hear the possibility of child marriage, and adopt liberal positions that are out of the mainstream to justify their own conclusions, from the ideas of folks like Fazlur Rahman and Fatima Mernissi, that it is not Islamically sanctioned period.
So in family law, and on child marriage in particular, does doctrine matter to help perpetuate the practice? Sure, but not in isolation. Legal doctrine, Muslim or American, should never be viewed in isolation, at least if you're trying to understand the world as it actually exists.
HAH
I'm curious where you interpret some major sunni schools as not requiring a girl's consent, from where do you draw that from? To my knowledge, at the very least all major schools require the bare minimum of a woman's silence indicating consent if not her vocal approval/disapproval.
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I will reply with proper citations as soon as I return to the library, probably Monday.
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Quoting Ibn Rushd:
As concerns women, the jurists agree by consensus that the consent of the nonvirgin postpuberty woman must be taken into account. . . . They disagree about the postpuberty virgin. . .. . About the postpuberty virgin, Malik, al-Shafii abd Ibn Abu Layla say that the father may force her to marry.
{The jurists} arrived at the consensus that the father can force a prepuberty virgin and that he cannot force a divorced postpuberty woman. . .
So basically, the schools agree that a father can force his child into marriage pre puberty (though Hanafis give a right to the woman to cancel at puberty) and the split is at woman's consent post puberty.
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I'm curious if you have a primary source for this, as opposed to Ibn Rushd, for this is the very first that I've heard and I am somewhat skeptical. Also the Hanafi allowance of a woman to cancel a marriage at puberty: does that amount to a divorce? Seems quite contra spirit of Islam to me.
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I am sorry, but how is one of the greatest Maliki jurists of classical Islam not a primary source? I can dig up Ibn Qudama or Kasani too, but I'm not sure where that gets us exactly, they don't seem more authoritative than Ibn Rushd, just other madhabs. And respectfully, khiyar al bulugh as a Hanafi doctrine is thoroughly established, just google it in Arabic and a million cites will pop up. Here is one, apparently suggesting different rules depending on who contracted the marriage for the child (the marriage contracted by the father doesn't carry a right of cancellation). http://ifa-india.org/arabic/girl_boys.html Several other cites also available. The Shi'a have this too, you can check Sistani's cite for it. The kihiyar isn't divorce, the marriage was never consummated, it cannot be until the woman is baligh. after that, a woman cannot "divorce" in any event, she has to apply for a judicial separation, it's tafriq not talaq, talaq is available only to men.
I am actually happy to hear it is the first time you've heard of this, I'm happy to hear people are raised this way in the US, to separate this from modern practice at least here, but honestly, if you read the classical Islamic texts, you'll see it everywhere in the Book of Nikah. It's not a minor opinion, everyone talks about this.
I'm not sure the source of your skepticism, whether you are saying that the classical doctors, the established authorities of the four schools, never said this stuff, which I am sorry just is not true (I've given you one source already that is pretty authoritative on the Malikis), whether traditionalists from Ibn Baz to the folks in the Azhar don't repeat it (again not true, they do), or, much more plausible, whether you think that even though child marriage is an established practice in the Sunni schools by consensus, even though the authorities have clearly sanctioned it, that you don't think they really follow what you feel is the true Islam, that the four Sunni schools strayed on this point, the fiqh as declared by the classical authorities just is nto what God wants. In that case your request for a primary source is one of a search for hadith. Those you will find I think largely contradictory and ambiguous, and certainly capable of sustaining the interpretation you prefer (as well as the reverse). But the one you prefer, and I prefer, and the one you seem to have learned, is welcome and probably growing in popularity, I hope more each year. Still, it is progressive and nontraditional. The historic, mainstream view of the madhabs is different, it sanctions child marriage, and that was, and is, my point.
HAH
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How did the age of 9 come about? I don't know any girls that went through puberty at that age, even in the US where we are so well fed that we develop early.
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You are the second person to ask this. I'm going to dig around a bit, make some inquiries and see what comes back and make a post out of it if interesting enough.
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Wonderful article, as always, Haider. But the questions then becomes one of matching this trend with international law. According to Article 10 of the International Convention on Economic, Social and Cultural Rights, "Marriage must be entered into with the free consent of the intending spouses." Even more telling, a similarly worded provision can be found in Article 23 of the ICCPR.
If, as you allude to, 9 year old girls are unable to give informed consent to marriage, and, if Iraq is attempting to take a place among the international community of nations, then how can their family law still endorse the right of a father to give consent on behalf of a daughter or even require a daughter to marry (option at puberty notwithstanding)?
We spoke last week about how Family Law is a big issue in Iraq and one that shari'a will play a large part in. But how can Iraq claim to follow both international law and Shari'a on this issue without running afoul of either the international community or its own population?
Which is not to say that the same thing doesn't happen all over the world, including in the US, I just see this as a very interesting case where the law is still being formed, but that formation is taking place during a time when international concerns about potential human rights violations is much more pronounced than at the post-colonial period in the 1950s and 60s.
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To be clear, Wes, Iraq's Personal Status Law DOES require the consent of women, and DOES require that they be 18. There are Islamist movements to turn that into shari'a requirements, which would at the least lower this age, but to date they have been unsuccessful. Of course, if that is done, it will definitely create difficulties with the broader international community, though probably not enough to affect those areas of commerce that are likely to be the largest in Iraq (i.e. oil). Nobody talks much about Saudi, for example, or at least those who do are pretty marginal to business in the kingdom. I think for most Iraqis, liberals or conservatives, it's less about the international community and more about the society they want to have. I am horrified by the prospect of child marriage and that's the main motivation for my opposing it in Iraq. That so much of the rest of the world agrees with me might be comforting, but really tangential to the matter.
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Peace and blessings Haider Ala Hamoudi:
I found your blog by way of Charles. I appreciate your analysis of this sensitive topic. It’s refreshing to know and to see that Muslim men are not pushing this practice underneath the rug.
I have some questions for you:
You said: the classical shari'a among all Sunni schools of thought sanctions marriage at puberty, which is assumed to be age nine for girls.
I don’t understand how scholars came to this assumption when most healthy females begin menstruation between the ages of 12 and 15? Females who are malnourished may begin even later?
You said: Legal doctrine, Muslim or American, should never be viewed in isolation; at least if you're trying to understand the world as it actually exists
How can the clergy reach out to the community to eliminate this? I have often called folks out on “pre-texting”. Pre-texting is a major problem in our communities in the United States.
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Wa alaikum assalam sister, it's always nice to get a woman's perspective, and so I thank you for it. For example, the menstruation at nine (a Shi'i position too, in that Sistani mentions bulugh for a woman at nine) didn't strike me as biologically right, but it clearly didn't strike me as being as shocking as it seemed to be for you and another woman who commented. And so I let it pass without comment and the two of you have forced me to think about exactly why that is. There may be a simple answer, but I'll dig around and try to find it.
I think it is important for clergy to be close to laypeople, or the system won't work. That was the problem with Shi'i Quietism for example, that the clergy seemed isolated from the concerns of ordinary people. I wish I had an easy solution, but I do think having clergy who live among lay folk and derive their income from them is important, as it forces them to address the lay folk concerns. But I think it's a matter of a continual process of engagement that is key, with information flowing in both directions.
My regards to brother Charles
HAH
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You said: There are Islamist movements to turn that into shari'a requirements, which would at the least lower this age, but to date they have been unsuccessful.
Can you break this down in “dummy terms” for me? Why are these movements so interested in lowering the age requirement? I can’t figure out what would be their motivations? Do these people realize they are making Islam look like a religion ripe with pedophiles?
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Alaikum assalam Sister
Well the reason they give is that they want the shari'a to be the rule for personal status, and when you suggest the age for marriage is 18, you are changing the shari'a. This is not easily defended on the basis of consistent reasoning (as with all law) because we aren't exactly bringing back slaves, and we aren't bringing back medieval commerce, and we aren't resurrecting one community called the House of Islam as a political entity, and so why precisely with this issue we have to do exactly what the medieval jurists said is hard to defend as a pure legal matter. It is to my mind ideological--a desire to keep women in a particular place and using medieval texts to do it. But I share your views on how what all too many Islamic movements do reflects badly on us Muslims.
HAH
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Haider,
The fact that any Muslim organization is willing to fight so hard to lower the age of marriagaebility in a time when Islamic civilization is decaying: is a sad state of affairs, and a warning of worse things to come. The fact that Muslims of any “minhaj” or “mathab” feel that this is way to “hang on to the rope of Allah” or hang on to Islam is a nightmare. As if, fighting for this, is going to protect our families from the “evils” of the West? What a complete waste of time and energy.
Because the Muslim community has such a deep anti-Semitism, it prevents us from consulting with observant European/North Americans Jews to tackle the issue.
Salaam
I love this blog
A Thinking blog indeed
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I agree to somehow the three reasons you described are becoming a real fear now and in feature.
To my knowledge, at the very least all major schools require the bare minimum of a woman's silence indicating consent if not her vocal approval/disapproval.
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Everyone keeps saying this, which is reassuring in that it shows Muslims have developed the law beyond their classical roots. However, as an expression of the classical theory of the four madhahib, it is not true. The father or grandfather does have the right to contract the child in marriage prior to puberty witout the child's consent. and post puberty there is a split among the schools as to the necessity of the consent of a girl or woman as opposed to her father. I think it's the Hanafis that require it, and Shafi'is and Maliks do not.
Since there is so much misunderstanding about this, I'll go ahead and dig up a few classical sources from all the madhahib when I return from Iraq to demonstrate this, in early August. Ibn Rushd, Ibn Taymiyya, I'll see what Kasani has to say for the Hanbalis and try to find a Shafi'i source too, though don't know if I have one as easily available in our library or not.
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