Compulsion in Minor Marriages as Discussed in Early Islamic Legal Texts
In the Hanbalī legal manual the Mughnī, Ibn Qudāmah (d. 620/1223) claims consensus (ljmā) of the scholars of Islamic Law regarding a father's ability to compel his prepubescent daughter to marry someone "suitable" even against her will. This project explores Ibn Qudāmah's claim by investigating the contours of consensus-writing on child marriage. It looks first to the primary transmitter of early consensus (Ibn al-Mundhir, d. 318/930)—who is cited as an authority on consensus throughout al-Mughnī—then at three other writers (al-Marwazī (294/906), al-Tahāwī (321/933), and Ibn 'Abd al-Barr (463/1070).
This project explores the evolution in early claims of consensus. It highlights the influence on this topic of al-Shāfi'ī, whose arguments in support of compulsion of female minors in the Umm changed the discussion irrevocably. It illustrates how, unlike the Shāfi'īs, early Mālikī and Henafī texts did not rely upon the unit tradition regarding 'Ā'ishah's marriage to the Prophet. When jurists began relying upon the report of 'Ā'ishah as a proof text for this issue, its veracity itself became a topic of consensus. In the hands of Ibn Hazm (465/1072), and with that report as his basis, child marriage shifted from an issue applying equally to both children to an issue pertaining only to girls. The larger juristic culture seems to have followed his lead: child marriage for boys became radically under-discussed in the later legal texts, including the famed manual al-Mughnī. Thus there is an evolution in juristic thought, and the underlying issues over which no consensus existed: in early texts, we find there was no consensus with regard to the basis for female legal capacity (pubescence or sexual experience); no consensus on the meaning of "suitability" (the condition for the permissibility of a father's compulsion); no consensus on when a female child can tolerate sexual activity or the basis for her maintenance if she cannot; and no consensus on the definition of childhood itself.
Middle Eastern Studies;
Near Eastern Studies
0555: Middle Eastern Studies
0559: Near Eastern Studies