Is Islam Wrong About the Age of Consent?

A Contention

International human rights laws prohibit girls under the age of 18 from marrying. To be married at such a young age is considered a violation of their dignity and a cause of irreperable harm. The marital arrangement is thought to isolate them from their peers precociously and and stunt their development. The sharīʿah appears to not unequivocally and unreservedly condemn the marriage of girls below the age of 18. This has led many critics against Islam to argue that it is oppressive and immoral. This article seeks to address those arguments.

A Timeless Sharīʿah

The sharīʿah [Islamic ‘law’] is a living legal code which Muslims choose to abide by. Throughout this article, I will be using the Arabic term as the English language lacks a suitable equivalent. Wael Hallaq comments on this, “But linguistics here is not to be marginalised, for if concepts are defined by language, then language is a framework that not only delimits concepts – not a mean achievement – but that also controls them. Prime evidence of this is the routine and widespread statement, often used to introduce “Islamic law” to the uninitiated, that this law does not distinguish between law and morality. The absence of distinction becomes a distinct liability, for when we speak of any law, our paradigmatic and normative stance is that this law must measure up against what we consider to be ‘our’ supreme model.”¹

So the sharīʿah we are discussing must be evaluated on its own terms, and not measured up against our arbitrary morality and dictates of today. With this in mind, we must first appreciate that the sharīʿah is a living tradition suited to all peoples. It is sufficiently flexible, though not too flexible, to account for changing landscapes the world over. It accounts for custom and sociocultural limitations, and it applies to the able just as much as to the unable, to the rich just as much as to the poor.

Ossified traditions, such as any modern set of laws which moralise and claim timeless certainty, are inherently flawed as they lack the conceptual and legal framework to respond to changes in thought across time and space. The only way for them to respond to changes in the external world is to change themselves, in which case the old law is rejected as deviant and backwards, and the new law—even if it is a recycled old law that has just returned to vogue—is declared triumphant. It is no secret that the laws of yesterday are considered barbaric and heretical to Western lawmakers today, and that the laws of two days ago were considered barbaric and heretical to the Western lawmakers of yesterday.

The sharīʿah is timeless in the sense that it contains legal maxims and juristic principles that can apply equally well to the past and present. This allows judgements derived from it to be less ad-hoc, to provide legitimacy through cohesion and continuity between different epochs, to engage in a critical yet responsive manner with an ever-changing social environment, and to be both flexible and firm in grey, dubious, and unclear matters of law.

When assessing how the marriage of girls under 18 is to be viewed in the sharīʿah, we need to bear this context in mind.

A Principle of Harm Reduction

A central principle of the sharīʿah is the minimising of harm. It is a principle that has been explicitly noted by jurists since the time of the Prophet Muḥammad ﷺ. In fact, it is explicitly mentioned within the Qurʾān and the traditions of the Prophet Muḥammad ﷺ themselves. More specifically for our case, it is alluded to in the Qurʾān in multiple instances with regard to marriage in particular.

Allah says:

وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِتَعْتَدُوا ۚ وَمَنْ يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَنَفْسَهُ ۚ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا ۚ وَاذْكُرُوا نِعْمَتَ اللَّهِ عَلَيْكُمْ وَمَا أَنْزَلَ عَلَيْكُمْ مِنَ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ ۚ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّشَيْءٍ عَلِيمٌ

“And when you divorce women and they have reached their term, then retain them in kindness or release them in kindness. Retain them not to their harm so that you trangress. And whoever does that, then surely he has wronged his soul. Make not the revelations of Allah a laughing-stock, but remember Allah’s grace upon you and that which he has revealed unto you of the scripture and wisdom, whereby he does exhort you. Observe your duty to Allah and know that Allah is aware of all things.”²

Allah says:

لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَهُ بِوَلَدِهِ

“A mother should not be made to suffer because of her child, nor should he to whom the child is born [be made to suffer] because of his child.”³

Allah says:

أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ مِنْ وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ

“Lodge them where ye dwell, according to your wealth, and harass them not so as to straiten life for them.”⁴

And among the sayings of the Prophet ﷺ, we find:

لاَ ضَرَرَ وَلاَ ضِرَارَ

“[There should be] no harm or reciprocating harm.”⁵

According to al-Zaylaʿī, this ḥadīth was narrated by no fewer than eight companions of the Prophet ﷺ, including some of the most well-known names among them. To put this into perspective, the famous ḥadīth which teaches us that actions are to be considered in accordance with intentions was narrated by only a single companion of the Prophet ﷺ.

It was Ibn ʿUthaymīn’s view that ‘ḍarar’, mentioned in the ḥadīth, refers to unintentional harm and ‘ḍirār’ refers to intentional harm. In other words, both harm that was intended and harm that was accidental should be removed, according to the sharīʿah. An example of ḍarar would be a mother leaving a knife in a place where her child reached it and injured herself. An example of ḍirār would be the mother harming a child with said knife. Both are to be prevented.

Principle of Legislative Culture

Another well-known maxim from the sharīʿah which is particularly important for our current discussion is:

الْمَعْرُوفُ عُرْفاً كَالْمَشْرُوعِ شَرْعاً

“What is known by custom is like what is legislated by law.”

This maxim has Qurʾanic roots, with al-Suyūti arguing that its Qurʾanic basis is the āyah:

خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ وَأَعْرِضْ عَنِ الْجَاهِلِينَ

“Keep to forgiveness and enjoin kindness [al-ʿurf], and turn away from the ignorant.”⁶

The word ‘al-ʿurf’ is translated above as kindness, but it is the same word for custom, as seen in the legal maxim above it. Essentially, so long as custom does not contravene the sharīʿah, it is seen as legally powerful. As per the maxim, custom may behave like a stipulated condition within the sharīʿah.

We find custom to be impactful both legislatively and sociologically. In an interesting and beautifully humanising ḥadīth in Ṣaḥīḥ al-Bukhārī, it is reported that ʿUmar ibn al-Khaṭṭāb said:

وَكُنَّا مَعْشَرَ قُرَيْشٍ نَغْلِبُ النِّسَاءَ، فَلَمَّا قَدِمْنَا عَلَى الأَنْصَارِ إِذَا هُمْ قَوْمٌ تَغْلِبُهُمْ نِسَاؤُهُمْ، فَطَفِقَ نِسَاؤُنَا يَأْخُذْنَ مِنْ أَدَبِ نِسَاءِ الأَنْصَارِ،فَصِحْتُ عَلَى امْرَأَتِي، فَرَاجَعَتْنِي، فَأَنْكَرْتُ أَنْ تُرَاجِعَنِي، فَقَالَتْ وَلِمَ تُنْكِرُ أَنْ أُرَاجِعَكَ فَوَاللَّهِ إِنَّ أَزْوَاجَ النَّبِيِّ صلى الله عليه وسلم لَيُرَاجِعْنَهُ،وَإِنَّ إِحْدَاهُنَّ لَتَهْجُرُهُ الْيَوْمَ حَتَّى اللَّيْلِ‏.

“We, the people of Quraysh, used to dominate our women. But when we came to the Anṣār, we found that they were a people whose women dominated them. So our women began to learn from the manners of the women of the Anṣār. I shouted at my wife, and she argued back with me. I disapproved of her arguing back with me, so she said: ‘Why do you disapprove of me arguing back with you? By Allah, the wives of the Prophet ﷺ argue back with him, and one of them ignores him for the whole day until night.’”⁷

ʿUmar speaks of a change in behaviour of the womenfolk of Quraysh when they left Makkah and arrived at Madīnah, where the women were more assertive. The important point is that both of these behaviours were considered to be normative and within the cultural gamut of Arabia. The Prophet ﷺdid not legislate against this cultural shift. Rather, we find, later in the ḥadīth, that he smiled upon hearing ʿUmar’s assessment.

Allah says:

وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ

“And for them (i.e. wives) is like what is upon them, according to what is customarily known to be good.”⁸

In other words, women have rights in accordance with the rights that are against them, as per what is customary in this regard. al-Shawkānī explained that the term maʿrūf, when used in this context, means that “he (i.e. the husband) should treat them (i.e. wives) in a manner that is known from the habits of people [maʿrūf min ʿādat al-nās] in how they treat their wives.”⁹ Therefore, it is generally understood that social interactions, including marriage, will differ based on cultural preferences, and so long as harm is not being done, and the sharīʿah is not being violated, then these interactions are permissible and sound.

A woman came to the Prophet Muḥammad ﷺ and complained that her husband was being miserly. She asked whether she could just take from her husband’s property without him knowing. The Prophet ﷺ replied, saying:

خُذِي مَا يَكْفِيكِ وَوَلَدَكِ بِالْمَعْرُوفِ

“Take what suffices you and your children according to what is customarily known to be good.”¹⁰

Taking money for the house shopping, for example, is entirely expected and should not count as theft. However, if a wife was to quietly take money out of her husband’s bank account and buy herself a few holidays, this may well be seen as excessive and blameworthy. Custom will guide what is considered acceptable. A 21^st century woman living in England would not, and should not, be expected to live the lifestyle of a desert nomad from 1,400 years ago. The sharīʿah understands and respects this. Judges in Islam need to also recognise and respect this. And they should know that understanding and respecting this does not amount to changing the sharīʿah. As we have seen, it is perfectly in line with what the sharīʿah demands.

A Double-principled Approach to Contemporary Child Marriages

When dealing with a sensitive issue such as that of the marriage of girls under the age of 18, one needs to be fair in their assessment both of its potential harms and its potential innocuity. Professor Jonathan Brown writes:

“In 2014 the Pew Research Center estimated that roughly 57,800 minors (i.e., individuals under 18) were legally married in the United States… And while these numbers vary across the nation, in some states the rates are much higher… California currently considers child marriage permissible as long as the child’s parents agree. Likewise, France is currently debating whether or not it should establish an age of consent. The country has had no set legal age up to this point, which has led to a significant number of acquittals for men accused of raping a minor (as young as and even younger than the age of 11).

… This is especially disconcerting, considering the ways in which children are exploited and abused by these practices in the contemporary period. Young girls are the most vulnerable to the consequences of early marriage, which not only limits their social, educational, and economic opportunities but exposes them to health risks due to early pregnancy along with psychological and emotional trauma… In an age of the ever-growing phenomenon of child sex trafficking and pornography on the internet, this is especially concerning. For example, just this year, German law enforcement uncovered an online child pornography ring with a membership of nearly 90,000 users. Only a handful of them have actually been arrested.

Given this reality, it is unsurprising that the well-being and protection of children continues to be one of our greatest concerns, as well as a very sensitive topic. However, while concerns and sensitivities are undoubtedly warranted, they can sometimes lead us to make rash judgments about past communities—judgments outside the realm of established scientific fact and reason.”¹¹

It would be unfair to ignore these very real concerns about the effects of child marriages in our times, but it would be equally unfair to apply the reality of our times upon a people who lived in a completely different time. What is possible, sensible, and harmless in one era may well be otherwise in another era. 7^th century Arabs often spent many days with little or no food—perhaps just a handful of dates. They walked long hours in the desert with limited water. Their life expectancy was much lower. They did not have universities. In fact, they did not even have schools! Marriage took place much younger and was a form of security for people. It gave them new homes, meaningful activities to carry out, and companionship. It built relationships between families and tribes, and it was seen as a great blessing for people.

The harms we see today are real, but the situation throughout most of history was vastly different. They lived lives closer to what biology dictated. Children matured far sooner. Boys were often working for families much earlier. A harsh desert lifestyle and no formal schooling coupled with lower life expectancy meant that life progressed much faster. This was entirely normative and even welcome. People were happy with it, and there are many reports to this effect. It is incredibly naïve and, frankly, false to claim that parents of yesteryear did not love their children or care for them properly like we do. If anything, familial bonds are far stronger in a less digitised age and a less cosmopolitan context.

Thus, it was seen as entirely acceptable for people to get married and begin relationships far younger back then. The life expectancy of women is estimated to have been around 35 years old, and that is for the women that survived past infancy in the first place. Infant mortality rates meant that each woman would need an average of around six pregnancies just to maintain a stable population.¹¹With natural breaks in pregnancy through the contraceptive effects of the post-partum and breastfeeding periods, women would need to start becoming mothers very young just to maintain the population. Thus, it makes complete sense for women to have entered into stable domestic relationships far sooner than is customary now. This was not just the case in Arabia but across the world.

Yet we can still appreciate that our times are different. Our situation in modernity being different means that it makes far more sense for us to implement more safeguards for children. And these same sharīʿah principles that could accept minimum ages for marriage are the same ones that would prevent other forms of exploitation that are considered normative in our times. Easy examples of this are pornography and sexual relations between minors. For all the moralising in the West over minimum ages for marriage, there seems to be an almost complete overlooking of minimum ages for sexual relations in the first place. The same 13 year old who may be impregnated through marriage may also be impregnanted by a 14-year-old boy outside of marriage. How is the latter not incredibly harmful for the child?

A sharīʿah which seeks to prevent harm and to value cultural understandings can appreciate that, in modernity, we live for longer, we are not so dependent on marriage for safety and sustenance, we have far longer periods of education, and we need to be far more sociologically and technologically astute before we venture out into the real world. It can appreciate these things and implement relevant safeguards for girls. This is why Muslims have generally not taken issue with the implementation of age restrictions on marriage—certain things make sense in certain times.

This is not to say that Muslims are entirely aligned with every Western legal decision on relationships. Pornography, adultery, and sex outside marriage between both adults and minors are some examples of things the sharīʿah declares prohibited and Muslims consider harmful whilst most Western societies consider them to be normative practices. And, perhaps, in the future, the mood will shift on those also.

For now, we can rest assured that the timeless principles of the sharīʿah are sufficiently flexible to accommodate our changing times and to protect women. And we should understand that what suits our society now would not necessarily have suited every other society to have ever existed. The best legal code is surely one that appreciates this, not one that forces an arbitrary and unthinking morality across all lands and all time.

References

1. Hallaq, Wael. n.d. ‘What Is Sharīʿah?’
2. Qurʾan 2:231.
3. Qurʾan 2:233.
4. Qurʾan 65:6.
5. Mālik ibn Anas, al-Muwaṭṭaʾ.
6. Qurʾan 7:199.
7. Ṣaḥīḥ al-Bukhārī, 2468.
8. Qurʾan 2:228.
9. al-Shawkānī, Fatḥ al-Qadīr.
10. Ṣaḥīḥ al-Bukhārī, 5364.
11. Understanding Aisha’s Age: An Interdisciplinary Approach. n.d. https://yaqeeninstitute.org/read/paper/understanding-aishas-age-an-interdisciplinary-approach.