Child marriage and the Syariah — Haider Ala Hamoudi

The whole troublesome issue of child marriage and the Syariah rose its ugly head again, leading to the typical polemic-filled remonstrations; one side indicating this was a distressing cultural phenomenon that had nothing to do with the Syariah 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 here.

First, it is amply clear that the classical Syariah 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 girls courageous enough to go to a courthouse and demand 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 normalcy were different, that behavioural maturities were different, that if you are going to criticise medieval Muslims for child marriage, then we have to talk about medieval Christian practice or precisely what 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.

Economical and cultural

Now having acknowledged that the mainstream position of the major Sunni Muslim schools continues to be that marriage can be done at puberty, can we then look to the Yemeni example as being in fulfilment of doctrine, and other Muslims as being hopelessly deluded when trying to argue against this? Of course not.

That is, while the Yemeni poverty stricken peasant may argue that he is permitted to marry off his daughter at nine if he wants to because the Syariah 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, none of which is related to Muslim doctrine and one of which in fact grossly violates 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.

The first is obviously not related to the Syariah, clearly fear of poverty is an economic issue, I don’t want to be poor is not a statement derived from doctrine. The second 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 the third, it’s a pretty gross violation of the Syariah. While you can say that a woman’s consent to marriage is not sufficiently respected in Islam, 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 Syariah 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.

Think of context

Go to Islamists in Baghdad, Iraq, 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 emphasised, 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 illegally anyway) but to him, this facet of the Syariah 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 US, 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.

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. — harakahdaily.net/en

* The writer is Assistant Professor of Law, University of Pittsburgh School of Law, and blogs at muslimlawprof.org, from which the above article was adapted