The Nature of Islamic Law

In Part 1 we covered the scientific anomalies apparent in our detractors understanding of childhood throughout human history, and in Part 2 we attempted to examine the underlying moral philosophy they adopt that colors it. In this final portion, we will attempt to conclude our analysis by showing the true nature of Islamic Law and how it applies to the case of Prophet Muhammad (saws) and his relationship with Aisha (ra), along with how it functions today.

Our detractors may also introduce a number of misconceptions while analyzing this refutation, so we will try to get those out of the way immediately before moving on.

Firstly, it should be noted that this research does not intend to justify contemporary marriages defined as ‘underaged’ and we condemn those practices outright given that current conditions do not allow for justice to be optimally reached for those sort of relationships. As such, we consider such marriages to be unjust. If our detractors attempt to read this as a justification of said marriages in the contemporary period, let them end those doubts here and allow for the research to speak for itself.

Secondly, our detractors may claim that because Islamic Law is said to be Divine, it therefore is ‘too rigid’ to accommodate changing standards. As noted before, the NCM model of morality – which is exemplified in Islamic Law – can easily refute this by allowing us to focuss on strict Normatives that are optimized in different circumstances. Early in Islamic history, the second caliph of Islam, Umar al-Kataab (ra), gave a clear example of how some of the most rigid applications of Islamic Law (hadud) can be flexible depending on circumstance by suspending the punishment of theft due to the fact that his people at the time were under a heavy strain of poverty[1].

This flexibility, however, is not arbitrary and comes from a principle within Islamic Law itself, called the principle of istihan or masalih mursullah [2] which is based on a considerable amount of independent reasoning by jurists, especially when a ruling is ambiguous (majmal)[3] in terms of how it can be applied universally. This ambiguity, we argue, is primarily a result of the fact that a rulings application is heavily dependent on factors that change considerably throughout time and environment.

Having cleared these misconceptions, we can move on to how Islamic Law relates to the issue at hand.

First, let us look at a passage from the Qur’an, regarding an age for marriage:

Test orphans until they reach marriageable age; then, if you find they have sound judgement, hand over their property to them. Do not consume it hastily before they come of age: if the guardian is well off he should abstain from the orphan’s property, and if he is poor he should use only what is fair. When you give them their property, call witnesses in; but God takes full account of everything you do.[4]

This passage ambiguously declares there to be a ‘marriagable age’ and therefore requires some supplementation, such as with commentaries from Islamic tradition – known as ‘tafsir’. One such commentary, Tafsir al-Qur’an al-Azim, by Ibn Kathir – a famous Shafi’i scholar – explains what ‘marriagable age’ means:

 Allah commands that the property of the orphans be surrendered to them in full when they reach the age of adolescence, and He forbids using or confiscating any part of it.[5]

Ibn Kathir also notes that this passage applies to both male and female orphans[6] and explains what constitutes as adolescense in the same explanation:

 Allah said, (And test orphans) meaning, test their intelligence, as Ibn `Abbas, Mujahid, Al-Hasan, As-Suddi and Muqatil bin Hayyan stated.

(until they reach the age of marriage), the age of puberty, according to Mujahid. The age of puberty according to the majority of scholars comes when the child has a wet dream. In his Sunan, Abu Dawud recorded that `Ali said, “I memorized these words from the Messenger of Allah ,

(There is no orphan after the age of puberty nor vowing to be silent throughout the day to the night.) In another Hadith, `A’ishah and other Companions said that the Prophet said,

(The pen does not record the deeds of three persons: the child until the age of puberty, the sleeping person until waking up, and the senile until sane.) Or, the age of fifteen is considered the age of adolescence. In the Two Sahihs, it is recorded that Ibn `Umar said, “I was presented in front of the Prophet on the eve of the battle of Uhud, while I was fourteen years of age, and he did not allow me to take part in that battle. But I was presented in front of him on the eve of the battle of Al-Khandaq (The Trench) when I was fifteen years old, and he allowed me (to join that battle).” `Umar bin `Abdul-`Aziz commented when this Hadith reached him, “This is the difference between a child and an adult.” There is a difference of opinion over whether pubic hair is considered a sign of adulthood, and the correct opinion is that it is. The Sunnah supports this view, according to a Hadith collected by Imam Ahmad from `Atiyah Al-Qurazi who said, We were presented to the Prophet on the day of Qurizah, whoever had pubic hair was killed, whoever did not was left free to go, I was one of those who did not, so I was left free.” The Four Sunan compilers also recorded similar to it. At-Tirmidhi said, “Hasan Sahih.” Allah’s statement,[7]

Several signs were required to assume that puberty was reached for both males and females, with a maximum age given if neither signs were shown by that time (normatively speaking). This has been unanimously agreed upon by all of the ulema. While a girl who was considered physically or mentally immature could be contracted into marriage (with limitations in her favor [8]), however, she could not have her marriage consummated until physical maturation:

The majority position of all classical schools of law held that minors could be contracted in marriage by their guardians, although consummation was not permitted until the minor was physically ready to enter a sexual relationship.[9]

Menarche and pubic hair were considered some of the conditions for females, however, these were not the only signs. As suggested by ulema in the past, there were other conditions that must also be considered:

A marriage could be contracted before either party was ready for sexual intercourse, but a marriage could not be consummated until both bride and groom were physically mature. Such maturity was not equated with puberty (the marker of legal majority), but rather could be reached before its onset. For a girl, readiness for sexual intercourse was signalled in large part by her appearance, by whether or not she had become an “object of desire,” “fleshy”(samrna), or “buxom”(dakhmap), physical attributes that signified that she could now “endure intercourse”. Until such time, the marriage, although legally contracted, clearly lacked an essential element.[10]

This “fleshiness” applied to any woman that had previously been unable to “endure intercourse”, regardless if they had exhibited the beforementioned signs or not. Also, the ability to “endure intercourse” was normatively based on the common judgment of the community – not pedophiles. It is therefore remarkable that our detractors often quote al-Qur’an 65:4[11] – which implies that women could consummate their marriages prior to menstruation – as a means to suggest that Islam allows for sex with premmature girls.

This division between what is considered a contracted marriage and a consummated marriage should also be noted. Many times, our detractors insist that because a premature girl can be contracted into marriage, that this automatically implies that sex can also be initiated. Islamic Law, however, disagrees with them by not allowing the contract to go any further until a woman has reached the right physical conditions to endure such relations, and does not allow a woman to be sexually available simply based on the contract being formed[12].

What is more, is that while the age of 9 in Islamic Law is considered the minimum for when such physical/mental maturation can take place, it is never mentioned as one of the conditions by which to judge puberty or physical maturation. As such, it is another flaw of our detractors arguments to use it as some sort of means by which to suggest that Islam allows for the harm of premature girls.

Given contemporary circumstances where men and women live in an environment where the world economy and nature of education require individuals to have to study longer, and by extension, mature much more slowly — as opposed to children of the past [13] — Islamic Law is fully prepared within the limits of its own principles and goals to accommodate the the current environment and thus not force upon people early marriage. Therefore, we conclude that on the basis of scientific research and the true nature of Islamic Law, that our detractors are not only mistaken in their accusations of pedophilia against Prophet Muhammad (saws), but they are also mistaken in assuming that his example is burdensome or allows for the exploitation and harm of minors in the contemporary period.

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FOOTNOTES

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[1] “Obviously the underlying principle considered in these actions was the welfare and interests of the general public. Otherwise, there would be disharmony and chaos in society….The case of theft that was brought to ‘Umar took place in the year of famine and under the prevailing circumstances the offence [theft] was committed out of necessity for food, and for this reason, ‘Umar withheld the amputation of the hands of the offender. Therefore, this ‘deviation’ [withholding the punishment] was actually in line with the teachings of the Prophet [saws].”–Wan, A. (2003). Public interests (al-masalih al-mursalah) in islamic jurisprudence: An analysis of the concept in the shafi’i school. Kuala Lumpur: International Institute of Islamic Thought and Civilization, 27-28

[2] “As we have alluded, it is through the principe of al-masalih al-mursalah that the adaptability of Shari’a with social changes is justified. What, then, is masalih al-mursalah?….Juridically, masalih carries the meaning of ‘welfare’ and the jurists applied the term to mean ‘general good’ or ‘public interests’ or the acquisition of goodness, utility, benefit of the removal of harm or evil [according to the overall necessities of the Shar’ia].”– Ibid, 5-6.

[3] “For the Qur’an comprises passages which are in the nature of probability (zahir) and ambiguity (mujmal). Such instances in the text can be clarified by reference to the circumstances in which they were received.”– Kamali, M. (1991). Principles of islamic jurisprudence. Kuala Lumpur: Islamic Texts Society, 45.

[4] Al-Qur’an 4:6

[5] Ibn Kathir, Tafsir al-Qur’an al-Azim — commenting on Al-Qur’an 4:6

[6] Ibn Kathir, Tafsir al-Qur’an al-Azim — Ibn Kathir mentions that this also applies to orphan girls while commenting on Al-Qur’an 4:3

[7] Ibn Kathir, Tafsir al-Qur’an al-Azim — commenting on  Al-Qur’an 4:6

[8] “The jurists who insist on guardianship in marriage seem to consider that it is a duty rather than a right of the guardian, or at least a synthesis of both.While the guardian has the right to conclude a marriage on his ward’s behalf and to give consent or object to her unwise choice, it is his duty to exercise this right in her best interests and he is enjoined to take her wishes into consideration.”– Quoted in Mahdi, Z. (1996). The legal capacity of women in islamic law. Arab Law Quarterly, 11(3), 260.

— The jurists insisted that the woman being contracted into marriage could not be coerced or exploited and were also unanimous that her wishes be met. She could also not be forced to stay in the contract after reaching legal capacity.

[9] Welchman, L. (2000). Beyond the Code: Muslim Family Law and the Shari‘ Judiciary in the Palestinian West Bank, The Hague, Netherlands: Kluwer Law International, 108-109.

[10] Tucker, J. (1994). Muftis and matrimony: Islamic law and gender in ottoman syria and palestine. Islamic Law and Society, 1(3), 271

[11] “If you are in doubt, the period of waiting will be three months for those women who have ceased menstruating and for those who have not [yet] menstruated; the waiting period of those who are pregnant will be until they deliver their burden: God makes things easy for those who are mindful of Him.” (Al-Qur’an 65:4)

[12] Refer to footnote 8

[13] http://asadullahali.wordpress.com/2013/03/17/prophets-vs-pedophiles-part-1/