December 4, 2018
Despite the fact that civil codes of most Muslim-majority countries have adopted a marriage age of 18, many Muslims cite Islamic law as supportive of marrying younger. Islamic law—inherently resistant to codification and keen on pursuing what is beneficial for believers (maṣlaḥa)—is more flexible and equivocal on the subject. When the Qur’an refers to an age of marriage (one reference 4:6, and only in passing) it does not specify any age in particular, but rather identifies it with the attainment of “reason,” itself unspecified. Any Muslim jurist will tell you that Islamic law has two realms: the realm of historically contingent social interactions (muʿāmalāt), and the unchanging realm of worship (ʿibādāt). Marriage law falls within the realm of the first category, that of contingent social interactions. Muslim marriage is thus a contractual relationship, and not a sacrament.
Because marriage is a contract, consent is key to its validity; without consent, the contract is void. To this end, there is a Prophetic hadith (tradition or saying) insisting that females, virgin or non-virgin, must be consulted and give permission before marrying.
A child, having no legal capacity, has no consent to give. If a child cannot properly give consent, then surely a child cannot be married. What, then, is the problem? Most legal schools consider a marriage guardian, acting on behalf of the bride, to be an essential component of the contract; this guardian must have the bride’s permission before contracting. If the guardian is the father, he (and only he) can compel his prepubescent male or female child to marry, and the contract stands.
Part of the reason for this lies in a report that the Prophet married his best friend’s daughter, a girl named Aisha, when she was nine. Some jurists have disputed aspects of the report, noting that it had not been included in most early legal compendia and doubting the reliability of one of its narrators. They questioned whether the contract would have been insisted upon had she protested. Historians have challenged Aisha’s age, some asserting she was 18. Still, most early jurists preferred this report to the previous hadith about permission because it crucially affirmed paternal power.
Legally, however, there is a caveat that the groom must be “suitable.” If the groom was deemed unsuitable, the marriage could be dissolved. What is suitability (kafāʾa)? Like the Qur’an’s “marriage age,” the answer could not be codified and was left to be defined by the social context of a given Muslim community. Some jurists’ opinions about who was unsuitable for a respectable Muslim girl included slaves, Persians, and cuppers, medical professionals who specialized in the extraction of blood. None of these categories applies today. Yet the suitability requirement stands; legal codes in Gulf states, for example, retain the language, yet have not attempted to redefine the concept.
Now is surely the time to attempt such a redefinition.
Practically speaking, the best possible approach to combating forced marriage from within the Islamic legal tradition is to demand that a spouse be of suitable age. The preeminent job of the Muslim community must be to help girls understand their basic legal rights. The juridical literature spills over with females pressing their cases in courts, and this precedent should be emulated: girls must understand their legal right to resist a father’s contract through arguing for suitability. The community as a whole must demand that in the modern context, age must be a component.
But why are girls compelled to marry? It is grievous over-simplification to suggest that preventing premarital sex is the only reason fathers marry off their daughters. More pressing are the issues of poverty and ignorance.
In too many ways, child marriage still functions exactly as it did in the late-antique world in which early Muslim jurists found themselves opining: it was a way for fathers to relieve themselves of another mouth to feed. Child marriage is at its highest in some of the world’s poorest communities. One of the most alarming results of the recent refugee crisis is the huge surge in incidences of child marriage within the camps. Where poverty is made even more complex through war and violence, it is the responsibility of the international community to welcome refugees into settings where they can live and work with honor.
The other issue is ignorance. The health effects of child marriage are catastrophic (and expensive); the social ramifications of girls dropping out of school (if they’d been allowed to go in the first place) are far-reaching. The Muslim community can focus on encouraging basic Islamic legal literacy about consent, suitability, and litigation but also about the benefits of older marriage.
It is key, though, to keep in mind that the age of 18 may indeed have emerged from a context of cultural privilege associated with Western educational systems; many conservative religious leaders play identity politics by framing what is Muslim as anything non-Western. To counter this, sensitive arguments for a higher marriage age will be anchored in Muslim sources as well as data-driven health facts that lead to wide-ranging benefits for the Muslim community. If grassroots faith-inspired and community groups connect with progressive Muslim scholars and vibrant activist groups like Karamah, Muslim Women Lawyers for Human Rights, vocabulary will emerge for educational campaigns (Twitter deluges? Mural arts programs?) that respect the law’s adaptability and its ability to empower even the youngest believers.