Comparative Islamic Studies, Vol 5, No 1 (2009)

An Exploration of the Juristic Consensus (ijmāʿ) on Compulsion in the Marriages of Minors

Carolyn Baugh

Abstract


In the Hanbalī fiqh manual the Mughnī, Ibn Qudāmah (d. 620/1223) claims consensus (ijmā’) of the scholars of Islamic Law regarding a father’s ability to compel his prepubescent daughter to marry against her will, provided it is to a suitable match. This paper 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 a source of consensus throughout al-Mughnī—then at three other writers who focused on Ijmā’ (al-Marwazī (294/906), al-Ṭaḥāwī (321/933), and Ibn ‘Abd al-Barr (463/1070).
This discussion explores the relationship between early claims of consensus and the proof texts upon which they relied. The paper 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. Finally, it illustrates how, unlike the Shāfi‘īs, early Mālikī and Ḥanafī 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 Ḥazm (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, as child marriage for boys became radically under-discussed in the later legal texts, including the famed manual al-Mughnī.
Above all, this paper exposes the concept of Ijmā’ as a “lowest common denominator” of agreement on this topic. Extracting an ijmā’ic claim from its context of debate and discussion deprives the inquiring scholar of any sense of the ripples of conflict and controversy emanating from it. In these early texts, we find there was no consensus with regard to what grants agency to females (pubescence or sexual experience); no consensus on the meaning of “suitability” in marriage (a condition for the permissibility of a father’s force); no consensus on at what point a female child can tolerate sexual activity; and, of extreme importance from the legal standpoint, there was no consensus with regard to how the prepubescent is to be maintained if she is not yet able to tolerate sexual activity. Because the marriage contract predicates maintenance upon sexual availability, this point causes a crisis in the jurists’ definition of marriage.

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DOI: 10.1558/cis.v5i1.33






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