Quora Answer: Does Shari’ah include Child Marriage?

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ 

The following is my answer to a Quora question: “Does shari’ah law include child marriage?” 

It is important to get some definitions correct, so that we understand what we are actually asking here. 

Shari’ah is a legal tradition based on the Qur’an.  It refers to the overarching principles as laid down in the Qur’an, and the ahadits, the prophetic narrations.  As a legal tradition, it is preventive, as opposed to punitive, meaning that there is an emphasis on severe laws as a deterrent, not legal punishments to punish behaviour.  This is the same tradition as Old Testament laws.  The idea behind it is that it is preferable to face punishment for serious transgressions through the hadd, corporal and capital punishment, and be cleansed of that sin, than face Divine Punishment, including Hell, in the Hereafter. 

The practical application of shari’ah is known as fiqh, jurisprudence.  There are several dozen madzahib, schools of jurisprudence.  Whilst they all base their derived rulings primarily on the Qur’an, they utilise varying secondary sources to arrive at jurisprudential positions.  These details are a long story, in and off itself.  There are ahkam, rulings, and there are fatawa, legal opinions.  Ahkam, singular hukm, are to be adhered to, such as the injunction to perform the ritual prayer, five times a day.  Fatawa, singular fatwa, are mere opinions, and may be disputed or ignored. 

The problem with fatawa, is that every jurist, from the great scholars, to the village mullah who is actually a goatherder, may issue one.  They vary in quality from the profound, to the immensely stupid.  And like any organised faith, Islam has had a long time, over a thousand years, to accumulate stupid rulings. 

This is the case with child marriages.  However, we must also understand that the definition of a child has evolved with time.  In the past, mere ovulation marked girls as suitable for marriage.  This is not unique to Islam.  That is obviously unacceptable in our circumstance, so while we may understand how they think, it does not mean these notions are to be defended. 

Specific to Islam, however, is this issue of a hadits, a prophetic narration, attributed to Shaykh Hisham ibn ‘Urwah (r.a.), that Sayyidatina ‘Aishah bint Abu Bakr (r.a.) was six years old when she was marriage, and nine years old when the marriage was consummated.  Accordingly, there are literalists who still believe that as long as a girl starts to have her period, she is marriageable.  This is why we have Muslim-majority nations such as Saudi Arabia and Yemen where there is no minimum age for marriage. 

There is a generalised view in Sunni Islam that narrations found in Swahih al-Bukhari is sacralised, which was never the actual position.  It is a jami’, a compilation of narrations covering all known topics of the religious science, a resource for scholars to use to arrive at jurisprudential positions, where individual narrations are utilised or discarded as needed.  However, in this age of internet scholars, the unlearned, and the presumptuous, imagine that they can take translations of these narrations, disregarding the body of accompanying commentary, and attempt to apply them literally, literary devices and all.  This is a huge problem. 

On the other hand, even though this narration is found in Swahih al-Bukhari, that does not mean it is actually accepted by the wider body of scholarship.  The rationalist schools have calculated, based on the known dates of the major events of the life Sayyidatina ‘Aishah (r.a.), that she was likely in her mid to late teens when she was married.  It is also noted that the aforementioned Shaykh Hisham (r.a.) himself had other narrations contradicting the dates, meaning that his reliability, or the reliability of the chain of transmission may be disputed. 

In summary, shari’ah is simply the name of the legal tradition, based on Qur’anic values.  It neither allows nor proscribes anything.  Fiqh, jurisprudence, has a variety of views, based on the schools, the scholars, and the time period; and has evolved.  In contemporary times, there is a proscription on child marriages, and it is illegal, with legal penalties in most parts of the Muslim world.