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==Islamic law== | ==Islamic law== | ||
===Compulsion of minors and virgins=== | ===Compulsion of minors and virgins=== | ||
Two books by academic authors are particularly notable on this topic: ''Slavery and Marriage in Islam'' by Professor Kecia Ali,<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010</ref> and ''Minor Marriage in Islamic Law'' by Professor Carolyn Baugh.<ref>Carolyn Baugh,''Minor Marriage in Islamic Law'', Leiden: Brill, 2017</ref> A large set of translated quotes from various well known exegetical and jurist texts relating to these matters is also available online.<ref>[https://theislamissue.wordpress.com/2021/09/19/q65-4-the-verse-of-child-marriage/ Q65.4: The verse of child marriage]</ref> | Two books by academic authors are particularly notable on this topic: ''Slavery and Marriage in Islam'' by Professor Kecia Ali,<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010</ref> and ''Minor Marriage in Early Islamic Law'' by Professor Carolyn Baugh.<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', Leiden: Brill, 2017</ref> A large set of translated quotes from various well known exegetical and jurist texts relating to these matters is also available online.<ref>[https://theislamissue.wordpress.com/2021/09/19/q65-4-the-verse-of-child-marriage/ Q65.4: The verse of child marriage]</ref> | ||
Kecia Ali gives the following overview on the areas of juristic agreement and disagreement regarding compulsion (more detail is given below): | Kecia Ali gives the following overview on the areas of juristic agreement and disagreement regarding compulsion (more detail is given below): | ||
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{{Quote|Kecia Ali, ''Marriage and Slavery in Early Islam'', p. 32|For free females, both virginity and majority were of concern. Fathers could compel marriage of daughters who were both virgins and minors. On the flip side, those who were neither virgins nor minors could not be compelled but had to give their spoken assent to any proposed marriage. The intermediate categories - daughters who were either virgins or minors but not both - were the subject of disagreement.}} | {{Quote|Kecia Ali, ''Marriage and Slavery in Early Islam'', p. 32|For free females, both virginity and majority were of concern. Fathers could compel marriage of daughters who were both virgins and minors. On the flip side, those who were neither virgins nor minors could not be compelled but had to give their spoken assent to any proposed marriage. The intermediate categories - daughters who were either virgins or minors but not both - were the subject of disagreement.}} | ||
Carolyn Baugh similarly explains that there were some situations in which according to different schools of jurisprudence, consent to be given in marriage might or might not be required: the virgin pubescent (al-bikr al-bāligha), and non-virgin prepubescent (al-thayyib al ṣaghīra). Baugh questions later statements of consensus relating to this topic given disagreements such as these, though like Kecia Ali she states that there was agreement that consent was not required for a father to give his daughter in marriage if she was virgin prepubescent (al-bikr al-ṣaghīra).<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 21, 56</ref> | Carolyn Baugh similarly explains that there were some situations in which according to different schools of jurisprudence, consent to be given in marriage might or might not be required: the virgin pubescent (al-bikr al-bāligha), and non-virgin prepubescent (al-thayyib al ṣaghīra). Baugh questions later statements of consensus relating to this topic given disagreements such as these, though like Kecia Ali she states that there was agreement that consent was not required for a father to give his daughter in marriage if she was virgin prepubescent (al-bikr al-ṣaghīra).<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 21, 56</ref> | ||
The disagreement on the intermediate scenarios depended on whether the jurist believed that the legal rationale for compulsion was due to not having reached the age of majority, or because of virginity (regardless of age and development). | The disagreement on the intermediate scenarios depended on whether the jurist believed that the legal rationale for compulsion was due to not having reached the age of majority, or because of virginity (regardless of age and development). | ||
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'''Malik's''' legal methodology considered the custom of the people of Medina as more authoritative than this hadith. Ali notes that "For Malik, either virginity ''or'' minority allowed compulsion, so a non-minor virgin could be compelled. A previous marriage, if unconsummated, did not remove a father's power of compulsion".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> {{Muwatta|28||6}} and {{Muwatta|28||7}} are examples of hadiths in Malik's Muwatta on this topic. The ''Mudawwana'' which also records Malik's opinions, prefaces the hadith about consultation with the explanation that it was only referring to the fatherless virgin, claiming that the word wali (guardian) there excludes the father.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35</ref> | '''Malik's''' legal methodology considered the custom of the people of Medina as more authoritative than this hadith. Ali notes that "For Malik, either virginity ''or'' minority allowed compulsion, so a non-minor virgin could be compelled. A previous marriage, if unconsummated, did not remove a father's power of compulsion".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> {{Muwatta|28||6}} and {{Muwatta|28||7}} are examples of hadiths in Malik's Muwatta on this topic. The ''Mudawwana'' which also records Malik's opinions, prefaces the hadith about consultation with the explanation that it was only referring to the fatherless virgin, claiming that the word wali (guardian) there excludes the father.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35</ref> | ||
'''Shafi'i''' interpreted the hadith quoted above such that a father could still compell his virgin daughter into a marriage contract. Baugh explains that he did so by asserting that it refers to fathers as guardians, and the consultation of a virgin must be optional since otherwise there would be no difference in the right to consent between a virgin and non-virgin. He further argued that the consultation mentioned in the hadith is of psychological benefit to her and good manners, but she was in any case under obiligation to obey her father as she has no authority. The virgin daughter and prepubescent son are equally under the father's authority when contracting marriage.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 124-126</ref> Kecia Ali similarly says that for Shafi'i the consultation mentioned in the hadith was only a recommendation and if a father contracts a marriage for a baligh (pubescent) virgin it is not rescinded even if she objects. As for the rarer case of non-virgin minors, Ali says that according to Shafi'i such girls were forbidden to be married again at all until they reached majority since a non-virgin could not be married off without her consent, but a minor could not give valid consent. For both Malik and Shafi'i, the father's power to compel his virgin daughter to marry continued even after the age of majority. She notes that for Shafi'i, "there was no real difference between a minor and a bāligh female so long as she remained a virgin", though he recommended that daughters who have reached the age of majority are consulted.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35 - 36</ref> Baugh similarly says that Maliki and Shafi'i jurists believed that a female could never reach majority for purposes of freedom from her father's guardianship if she remained a virgin.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', p. 56</ref> | '''Shafi'i''' interpreted the hadith quoted above such that a father could still compell his virgin daughter into a marriage contract. Baugh explains that he did so by asserting that it refers to fathers as guardians, and the consultation of a virgin must be optional since otherwise there would be no difference in the right to consent between a virgin and non-virgin. He further argued that the consultation mentioned in the hadith is of psychological benefit to her and good manners, but she was in any case under obiligation to obey her father as she has no authority. The virgin daughter and prepubescent son are equally under the father's authority when contracting marriage.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', pp. 124-126</ref> Kecia Ali similarly says that for Shafi'i the consultation mentioned in the hadith was only a recommendation and if a father contracts a marriage for a baligh (pubescent) virgin it is not rescinded even if she objects. As for the rarer case of non-virgin minors, Ali says that according to Shafi'i such girls were forbidden to be married again at all until they reached majority since a non-virgin could not be married off without her consent, but a minor could not give valid consent. For both Malik and Shafi'i, the father's power to compel his virgin daughter to marry continued even after the age of majority. She notes that for Shafi'i, "there was no real difference between a minor and a bāligh female so long as she remained a virgin", though he recommended that daughters who have reached the age of majority are consulted.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35 - 36</ref> Baugh similarly says that Maliki and Shafi'i jurists believed that a female could never reach majority for purposes of freedom from her father's guardianship if she remained a virgin.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 56</ref> | ||
Kecia Ali says regarding another of the four major jurists, "'''Abū Ḥanīfa''' rejects compulsion at majority for all females, both virgin and non-virgin". There is no record of his ruling in the case of non-virgin minors, though later Hanafi texts are explicit that majority is determinative: "a ''bāligh'' female could not be coerced even if she was a non-virgin, but a minor could be, even if she was a ''thayyib''".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> | Kecia Ali says regarding another of the four major jurists, "'''Abū Ḥanīfa''' rejects compulsion at majority for all females, both virgin and non-virgin". There is no record of his ruling in the case of non-virgin minors, though later Hanafi texts are explicit that majority is determinative: "a ''bāligh'' female could not be coerced even if she was a non-virgin, but a minor could be, even if she was a ''thayyib''".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> | ||
According to Ali, '''Ibn Hanbal''' considered that a girl must be consulted if married at the age of nine years or older.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", p. 208, footnote 21</ref> Baugh describes his legacy on this issue as equivocal. In one mention of the topic, he stated that a virgin must be consulted, though "In another rescension of his opinions, he was asked if a man could marry off his virgin daughter without consulting her; he conceded that it was possible, but that he preferred she be consulted."<ref>Carolyn Baugh,''Minor Marriage in Islamic Law'', p. 9</ref> Baugh also notes that Ibn Hanbal said girls over the age of nine must be consulted.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', p. 139 footnote 65<Br />"Witness Aḥmad ibn Ḥanbal’s insistence that a nine year old girl must grant permission, and that orphan girls cannot be married at all prior to attaining age nine, a marker that is surely extrapolated from the ages put forward in the report of ʿĀʾisha. (Chapters on Marriage, 63–64) Aḥmad further avers that he believes husbands should not have intercourse with (orphan) wives below the age of nine."<BR /><BR />Regarding the first two issues, Baugh p. 174 footnote 38 quotes from Ibn Hanbal:<BR /> | According to Ali, '''Ibn Hanbal''' considered that a girl must be consulted if married at the age of nine years or older.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", p. 208, footnote 21</ref> Baugh describes his legacy on this issue as equivocal. In one mention of the topic, he stated that a virgin must be consulted, though "In another rescension of his opinions, he was asked if a man could marry off his virgin daughter without consulting her; he conceded that it was possible, but that he preferred she be consulted."<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', p. 9</ref> Baugh also notes that Ibn Hanbal said girls over the age of nine must be consulted.<ref>Carolyn Baugh, ''Minor Marriage in Early Islamic Law'', p. 139 footnote 65<Br />"Witness Aḥmad ibn Ḥanbal’s insistence that a nine year old girl must grant permission, and that orphan girls cannot be married at all prior to attaining age nine, a marker that is surely extrapolated from the ages put forward in the report of ʿĀʾisha. (Chapters on Marriage, 63–64) Aḥmad further avers that he believes husbands should not have intercourse with (orphan) wives below the age of nine."<BR /><BR />Regarding the first two issues, Baugh p. 174 footnote 38 quotes from Ibn Hanbal:<BR /> | ||
"The actual quotation from the Chapters on Marriage and Divorce, from the rescension of ʿAbd Allāh ibn Ḥanbal, reads: “If her father is alive, and she is under nine years of age, her father’s giving her in marriage is valid and she has no option. But once she has reached nine years of age, neither her father no anyone else can give her in marriage without her permission. And [with regard to] the orphan who is not nine, if someone other than her father is to give her in marriage, I do not like him to so until she has reached nine years of age. Once she is nine, she must be consulted. Then when she gives her permission, she has no option.”"</ref> | "The actual quotation from the Chapters on Marriage and Divorce, from the rescension of ʿAbd Allāh ibn Ḥanbal, reads: “If her father is alive, and she is under nine years of age, her father’s giving her in marriage is valid and she has no option. But once she has reached nine years of age, neither her father no anyone else can give her in marriage without her permission. And [with regard to] the orphan who is not nine, if someone other than her father is to give her in marriage, I do not like him to so until she has reached nine years of age. Once she is nine, she must be consulted. Then when she gives her permission, she has no option.”"</ref> | ||
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that a man among them who was called Khidam arranged a marriage for his daughter, and she did not like the marriage arranged by her father. She went to the Messenger of Allah and told him about that, and he annulled the marriage arranged by her father. Then she married Abu Lubabah bin Abdul-Mundhir.}} | that a man among them who was called Khidam arranged a marriage for his daughter, and she did not like the marriage arranged by her father. She went to the Messenger of Allah and told him about that, and he annulled the marriage arranged by her father. Then she married Abu Lubabah bin Abdul-Mundhir.}} | ||
Baugh discusses these and similar reports. Jurists claimed that Khidam's daughter was not a virgin but had been previously married, and this was the reason why Muhammad allowed her request, though Baugh argues that the jurists' assumption about her is questionable.<ref>Carolyn Baugh,''Minor Marriage in Islamic Law'', pp. 65-66, 84-85</ref> | Baugh discusses these and similar reports. Jurists claimed that Khidam's daughter was not a virgin but had been previously married, and this was the reason why Muhammad allowed her request, though Baugh argues that the jurists' assumption about her is questionable.<ref>Carolyn Baugh,''Minor Marriage in Early Islamic Law'', pp. 65-66, 84-85</ref> | ||
===Option of puberty to annul the marriage=== | ===Option of puberty to annul the marriage=== | ||