Claremont Graduate University Marriageable Age in Islam A Study on Marriageable Age Laws and Reforms in Islamic Law Jeremiah J. Bowden In Partial Completion of Religion 436: Islamic Law and Legal Theory Dr. Hamid Mavani 12/13/2010 1|Bowden: Marriageable Age in Islam One area of Islamic law that has been subject to much criticism as of late is the practice of child-marriage. Some, preferring to view Islam suspiciously, tend to caricaturize Muslims as morally depraved individuals who force their young daughters into marriages to old men for financial gain. Several polemicists commenting on this practice have hurled virulent epithets toward the Prophet Muhammad, whom they believe to be the originator of this abhorrent practice. A recent flare up of the debate occurred at the 2002 annual gathering of the Southern Baptist Convention, where Reverend Jerry Vines said, “Islam was founded by Mohammed, a demon-possessed pedophile who had twelve wives, and his last one was a nine-year-old girl.”1 Perhaps even more problematic was the reluctance of the Southern Baptist Convention‟s new president to repudiate Vines claims, instead calling them, “accurate.”2 In an interview on CNN‟s Crossfire with Tucker Carlson, Jerry Falwell pushed the issue even further by claiming time and again that any man who is fifty-four years old and sleeps with a nine-year-old child is a pedophile.3 It was rather unfortunate that Hussein Ibish, who was the Director of Communications and Media for the American-Arab Anti- Discrimination Committee and the Muslim respondent to Falwell, claimed to have no knowledge of this tradition and failed to directly address the accusations of Falwell and his ilk.4 1 Tucker Carlson, “Southern Baptist Convention Creates Furor Over Islam: Interview with Jerry Falwell and Hussein Ibish.”CNN Crossfire Transcript, Aired June 12, 2002. CNN Website. Accessed on 12/12/2010. http://edition.cnn.com/TRANSCRIPTS/0206/12/cf.00.html 2 Ibid. 3 Ibid. 4 Ibid.  Bowden: Marriageable Age in Islam |2 In the following paper, I intend to address the claims of Falwell and others like him by directly engaging the texts and traditions that follow. Simply pretending the texts do not exist, or feigning ignorance, will do little to change the misperceptions people have regarding Islam. I do not claim that I can prove that every Muslim has the best intentions of his daughter in mind when he marries her off at a young age, and this is explicit in the examples that follow. However, I should emphasize that the actions of a few should not be over-generalized to represent the group as a whole. After exploring instances where child-marriage still occurs, I will examine how this practice is being reformed in a way consistent with Islamic law. Ultimately, I will argue Muhammad‟s actions were moral and provide believers with a universal principle that ought to be followed. I will do so by articulating al-Ghazali‟s hermeneutical key to understanding the intention behind Islamic laws, by placing Muhammad‟s actions into their historical context, and by emphasizing the difference between Islamic culture and Islamic law. Let me begin by decoding the intention of Islamic law. To do so I draw upon the definition given by the eleventh century legal writings of Abu Hamed Muhammad ibn Muhammad Ghazali (referred to hereafter as al-Ghazali.) Al-Ghazali avowed that God‟s purpose behind revealing divine law was to bring about maslaha (the common good). As Felicitas Opwis makes clear, “this intention was to preserve for humankind the five essential elements for their well-being, namely, their religion, life, intellect, offspring, and property. Whatever protects these elements and averts harm from them is a maslaha, and whatever fails to do so is the opposite, namely, mafsada.”5 When one views the actions of Muhammad, and the rulings of the jurists through this lens, their intentions become much clearer. The reader will also find in the examples that follow that reform is most prevalent where these five aspects are emphasized. 5 Felicitas Opwis, “Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Legal Theory” in Shari’a: Islamic Law in the Contemporary Context, eds. Abbas Amanat and Frank Griffel (Standford: Standford University Press, 2007), 65-6. 3|Bowden: Marriageable Age in Islam The two authoritative sources of Islamic Law sine quibus non, are the Qur‟an and the Sunnah. The Qur‟an is relatively silent on the issue of marriageable age, albeit for one verse which states, “And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgment, release their property to them.” (Qur‟an 4:6) According to this verse, there seems to be an affinity between being of marriageable age and the age of mature intellect. Extrapolating from this correlation, Muhammad Iqbal Siddiqi claims a constitutive element of having a mature intellect is the ability to understand that one has choices, and the ability to choose the preferential option. Hence, the age of majority, a term Siddiqi equates with marriageable age and the age of mature reason, only occurs after puberty. He states, “A man or woman who has not attained puberty is unable to exercise his or her choice in matters of sexual matters and is unable to decide whether he or she will like or dislike a certain woman or man as wife or husband.”6 Thus, one should not marry until she reaches puberty and is able to determine what she is looking for in a spouse. However, I think Siddiqi may be reading medieval juristic decisions back into the holy text, a point that will become clearer below. Let us now turn to the much more fertile ground of the Sunnah. Due to the dearth of information on marriageable age in the Qur‟an, many jurists turned to the Sunnah when developing their rulings on the subject. I begin with the most highly regarded collections of hadith in the Sunni tradition, the Sahih al-Bukhari and the Sahih Muslim.7 In Bukhari‟s collection, there are at least three different hadith, with varying chains of transmission, which recount the events surrounding Muhammad‟s marriage to „Aisha. “The Prophet married her when she was six years old and he consummated his marriage when she was 6 Muhammad Iqbal Siddiqi, The Family Laws of Islam (Chicago: KAZI Publications, 1984), 68. 7 Nicholas Awde, Women in Islam: An anthology of the Quran and Hadiths (New York: St. Martin’s Press, 2000), 7.  Bowden: Marriageable Age in Islam |4 nine years old, and then she remained with him for nine years (i.e., till his death).”8 A similar account is given in Sahih Muslim. “'Aisha (Allah be pleased with her) reported: Allah's Apostle (may peace be upon him) married me when I was six years old, and I was admitted to his house when I was nine years old.”9 I implore the reader to set aside any anachronistic moral judgments aside for the time being, as I will explore the moral implications of the Prophet‟s actions below. Here I merely want to lay out the facts, before exploring the intention behind them. The fact that this tradition is passed down from multiple sources speaks to its authenticity. Hence, the focus of my argument does not rely upon the veracity of the hadith, as other apologists tend to do; for the sake of space, I assume them to be accurate. Intimately tied to the practice of child-marriage is the practice of compulsion in marriage. The idea being that since children can hardly decide for themselves, an adult must make the decision for them. It is pertinent, therefore, to discover what evidence the Sunnah gives for this practice. Jamal Badawi, a world-renowned speaker and preacher on Islam, is clear in his articulation of Islam‟s position on forced marriage, “The female has the right to accept or reject marriage proposals. Her consent is a prerequisite to the validity of the marriage contract… It follows that if an „arranged marriage‟ means the marrying of a female without her consent, then 8 Muhammad bin Isma’il Bukhari, The Translation of the Meanings of Sahih Al-Bukhari, 8 vols. Trans. Muhammad Muhsin Khan. USC Center for Muslim-Jewish Engagement Website. Accessed on 12/13/2010. http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/bukhari/062.sbt.html. Volume 7, Book 62, Numbers 64; 65; 88. 9 Muslim ibn al-Hajjaj, Sahih Muslim, Being Traditions of the Sayings and Doings of the Prophet Muhammad as Narrated by His Companions and Complied under the title Al-Jami’-us-Sahih. 4 vols. Trans. ‘Abdul Hamid Siddiqi. USC Center for Muslim-Jewish Engagement Website. Accessed on 12/13/2010. http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/muslim/008.smt.html. Book 008, Numbers 3309; 3310; 3311. 5|Bowden: Marriageable Age in Islam such a marriage may be annulled if the female so wishes.”10 To prove this, Badawi cites a hadith from Ibn-Majah‟s collection, “Ibn Abbas reported that a girl came to the Messenger of Allah, and she reported that her father had forced her to marry without her consent. The Messenger of God gave her the choice…(between accepting the marriage or invalidating it.)”11 A virtually identical account is given in Sunan Abu-Dawud12 and a whole chapter is devoted to the necessity of consent in Sahih Muslim.13 Let us now turn to an examination of how marriage laws were traditionally implemented. In Islamic law, marriage is viewed as a contract between two parties; this is quite different from Christianity where it is viewed as a sacrament. Similar to other contracts, declaration and acceptance are constituent elements to a valid marriage contract. A religious ceremony, although customary, is not legally necessary.14 Addressing the purpose of marriage, Judith Tucker posits that “having licit sexual intercourse is both the primary motivation, and the most important effect of the marriage contract.”15 When it came to the issue of consent, the minor ward found herself in a unique situation. All of the Sunni legal schools agreed that a girl‟s father had the right to marry her off to whomever he chose without consulting her. As minors, children lacked the legal capacity to give their permission for marriage.16 However, this marriage could not be consummated until the minor child reached the age of majority. Here one might recall that although Muhammad had married „Aisha when she was six, he did not consummate the marriage until she was nine. In the 10 Jamal Badawi, Gender Equity in Islam: Basic Principles (Burr Ridge, IL: American Trust Publications, 1995), 23. 11 Ibn Majah, Sunan Ibn Majah (Cairo: Dar Ihya’ Al Kutub Al-Arabiyyah, 1952), vol.1, hadith 1873. 12 Abu Dawud, Sunan Abi Dawud, trans. Ahmad Hasan. 2 vols. USC Center for Muslim-Jewish Engagement Website. Accessed on 12/13/2010. http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/abudawud/011.sat.html. Book 11, Number 2091. 13 Muslim ibn al-Hajjaj, Sahih Muslim, Book 8, Chapter 9, Numbers 3303-3308. 14 Norman Anderson, Law Reform in the Muslim World (London: The Athlone Press, 1976), 102. 15 Judith E. Tucker, Women, Family, and Gender in Islamic Law (New York: Cambridge University Press, 2008), 41. 16 Ibid., 43.  Bowden: Marriageable Age in Islam |6 period between her betrothal and the consummation of her marriage, the young bride would reside with her parents. Another important caveat, according to many jurists, is that upon attainment of the age of majority, the bride could exercise her right to annul the marriage if she so wished, this was called her “option of puberty.”17 In all of the classical legal schools the age of majority was equated with attaining puberty and demonstrating adequate mental development. Norman Anderson states, “the test in regard to puberty being the appropriate physical signs, but with the proviso that the minimum age is twelve for a boy and none for a girl, and that puberty may be presumed when either boys or girls reach the age of fifteen.”18 Until the bride reached the age of majority, she could not be given to her husband. The aim of these laws was to ensure the welfare and interests of the minor party.19 In the Sunnah, the Prophet sets a limit as to what is acceptable practice and what is not. Namely, by consummating his marriage with „Aisha when she is nine instead of when she was six, he effectively sets a limit to acceptable practice vis a vis licit sexual relations. While this act might sound deplorable to the contemporary Western reader, he is in fact attempting to show that there is an acceptable age for licit sexual relations and an improper age for those relations. In 7th century Arabia, the proper age for such relations was nine. Some might argue, and quite correctly I might add, that this age has risen dramatically since then. However, some fail to acknowledge this change and prefer to adhere to inherited practices. To further elucidate the importance of historical context a comparison between age of consent laws over the course of American history is quite telling. In 1880, the majority of the United States agreed that a person who was ten years old was old enough to consent to sexual relations. This is only a single year older than „Aisha was when she consummated her marriage 17 Ibid. 18 Anderson, Law Reform, 103. 19 Hammudah ‘Abd al ‘Ati, The Family Structure in Islam (Burr Ridge, IL: American Trust Publications, 1977), 77. 7|Bowden: Marriageable Age in Islam to Muhammad in 622, more than 1200 years earlier. It is interesting to point out that Delaware had set the age at seven and only a handful of other states upped their minimum age to twelve. By 2007, age of consent laws require people to be between fifteen to eighteen years old in order to engage in sexual relations.20 Returning to the writings of the jurists, further restrictions are placed upon the minimum age for marriage. It is not the case that all nine year old girls are now potential brides, but rather it is those women who have reached the age of majority. The problem that surfaces in the tradition that follows is that there is a tendency to universalize Muhammad‟s particular situation – marrying a nine-year-old girl – and then using it as a normative guideline for all believers, regardless of their historical context. As we will see in the examples that follow, instead of grasping the universal truth behind Muhammad‟s actions – that even when sexual relations would be licit, i.e. a groom sleeping with his wife, there is a proper age to engage in such activities – some argue that it is the particular action that ought to be repeated. Hence, we see some jurists who argue that since Muhammad had licit sexual relations with a nine-year-old girl, everyone should do the same. One region where this form of reasoning had taken root is Afghanistan under the rule of the Taliban. While the situation there may be slowly changing, it is worth exploring what factors figure into the high prevalence of child-marriage in the region. In Afghanistan, the value of a person is connected to what they can contribute economically to the household. This leads Deborah Ellis to assert that, “Girls are valued for the price they can fetch on the bridal market. In Afghan culture, the groom pays the bride‟s father for the right to marry his daughter. The money is supposed to compensate the parents for the money 20 Stephen Robertson, “Age of Consent Laws *Table+,” in Children and Youth in History, Item #24. Accessed on 12/13/2010. http://chnm.gmu.edu/cyh/primary-sources/24.  Bowden: Marriageable Age in Islam |8 they spent raising her, and for the services she will no longer be able to provide for them.”21 Since a man must work for many years in order to save enough money to afford the bride price, the groom is often much older than the bride.22 Many girls are married in their early teens or even younger. The Taliban supports this practice through their statements that girls are ready for marriage at the tender age of eight and their policies limiting the availability of education to women. Ellis points out that, “Poverty means that families no longer can afford to keep their girls at home very long, and the lack of educational opportunities reduces girls‟ employment options to cooking, cleaning, and having babies.”23 In 1978, the Communist government passed laws reforming these practices in an attempt to “remove the unjust patriarchal and feudalistic relations which exist between husband and wife.”24Needless to say, it did not work. Mullahs and fathers saw as it a challenge to their power and authority. Protests broke out, which was followed by armed resistance and ultimately the deaths of teachers and government officials. Under the new rule of the Taliban, marriage reform went out the window.25 Zohra Rasekh, a member of the Physicians for Human Rights, adds, “Because of the poverty and devastation, parents have to get rid of their daughters as fast as possible. The families cannot afford to keep the daughters, who will never be able to work outside and bring money into the household.”26 Rasekh then goes on to state the main problem in the Taliban‟s interpretation of Islamic law is that, “The Taliban says it is good, it is Islamic, to marry your 21 Deborah Ellis, Women of the Afghan War (Westport, CT: Praeger, 2000), 141. 22 Ellis, Women of the Afghan War, 141. 23 Ibid. 24 Ibid., 142. 25 Ibid. 26 Ibid., 143. 9|Bowden: Marriageable Age in Islam daughters off while they are young. They say „Do not keep your daughters too long at home. After age nine, they should be married!‟ This is child abuse… These young girls are basically raped, but that is not talked about.”27 Rasekh goes on to list several health issues that can occur as a direct result of child-marriage; these include, but are by no means limited to, gynecological problems due to early childbirth, a higher risk of cervical cancer, and a higher risk of suicide and other mental problems such as depression and anxiety. Then there is the issue of a child raising a child. If the young bride is hardly able to take care of herself, how can she be expected to take care of a small child?28 One of the most moving life stories recounted in Ellis‟ book is that of a woman named Parvin. Parvin was married when she was eleven to a man fourteen years her senior. She had her first daughter at age twelve, but, she states, “By that time my husband was dead. He fought with the Mujahideen and was killed eight months after we were married. I was a widow at twelve.”29 With barely any education, Parvin‟s career opportunities were severely limited. At the time of the interview, Parvin sold handicrafts and lived in a refugee camp in Pakistan. Parvin was adamant in wanting a different life for her own daughter, “My daughter [who was twelve at the time of the interview] goes to school. I do not want her to marry for a long, long time. When she is ready to marry, I will let her choose her own husband. Right now, she must continue her education. She wants to be an engineer.”30 Poverty and a lack of education are two prominent reasons why child-marriage became such a prominent practice in Afghanistan. However, the literalistic approach of the Taliban cannot be over-emphasized. They made the Prophet‟s marriage to „Aisha a normative practice 27 Ellis, Women of the Afghan War, 143. 28 Ibid. 29 Ibid., 144. 30 Ibid.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 10 for their citizens, and completely ignored the rationale behind Muhammad‟s actions. Perhaps one should point out to them that of all Muhammad‟s wives, „Aisha was the only virgin and the only nine-year-old. Nevertheless, to what extent can one claim that the practice is Islamic and to what extent is it cultural? The answer to this question is hard to parse out, but an example for a Yemeni enclave in Dearborn, Michigan may help clarify the issue. In her book, Mecca and Main Street, Geneive Abdo tells the story of fifteen-year-old Sherine.31 Sherine‟s parents arranged for her to be married to Ahmad, a man twice her age, because they feared Sherine would be viewed with suspicion if she were not married by the time she was sixteen, as was the common practice in her neighborhood. Amongst much protest on Sherine‟s part, the marriage occurred nonetheless. Her parents believed it would have been better for Sherine to be dead than to have a bad reputation in her isolated community.32 As Abdo makes apparent, “Under the Yemeni influence, a certain philosophy took hold of the Dix [the name of the local mosque] followers: the community consensus, not individuals or their families, determined proper moral and religious behavior.”33 The women complained of the fact that Yemeni traditions were confused with Islamic practice and as Abdo remarks, “This community provides a feeling of solidarity and offers a clear antidote to mainstream America, where they often feel uncomfortable. Yet the Yemenis cling to tradition, and often they confuse those traditions with Islamic doctrine.”34 Distinguishing culture from religion is difficult, and this is especially true when the community you are studying is as insular as the Yemenis of Dearborn. Perhaps this distinction 31 Sherine is not the girl’s real name. Abdo uses the pseudonym to protect her privacy, due to the sensitivity of family life in the Yemeni community of Dearborn. 32 Geneive Abdo, Mecca and Main Street: Muslim Life in America After 9/11 (New York: Oxford University Press, 2006), 37. 33 Ibid., 53. 34 Ibid., 44-45 11 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m can be made more easily by studying the minimum marriageable age laws among various states in the US. Having lived in two different states it is easy for me to see how a person‟s state affiliation influences their sense of identity and provides a cultural background. The argument can be made that minimum marriageable age laws are a reflection of that cultural background, and it should come as no surprise that they vary significantly from state to state. California, for instance has no minimum age set as long as the participants have parental consent. In New Hampshire and Massachusetts people can get married with parental consent at the rather young ages of thirteen and twelve respectively.35 Returning to the case in Afghanistan, the situation there provides the reader with a good example of how not to go about reform. The Communist government‟s suggestion that Islamic law ought to be jettisoned in favor of their Western secular form of law was doomed from the beginning. If reform is to come about and be viable, it has to do so within an Islamic framework. This is the predicament the nascent government of Iraq is now facing, and it is to this situation that I now turn. Since 1959, Iraq‟s personal status law provided women with some of the broadest rights in the region.36 The law, which was loosely derived from various schools of Islamic jurisprudence, set the marriage age at eighteen, prohibited arbitrary divorce, restricted polygamy, and reformed inheritance laws. Women made gains in other areas as well, as Isobel Coleman alludes to, “Under secular, albeit brutal, Baathist rule, Iraqi women made significant advances in numerous areas, including education and employment.”37 35 “Marriage Laws of the Fifty States, District of Columbia, and Puerto Rico”, Cornell University Law School Website. Accessed on 12/13/2010. http://topics.law.cornell.edu/wex/table_marriage. 36 Isobel Coleman, “Women, Islam and the New Iraq”, in Foreign Affairs January/February (2006). Foreign Affairs Website. Accessed on 12/14/2010. http://www.foreignaffairs.com/articles/61371/isobel-coleman/women-islam- and-the-new-iraq 37 Ibid.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 12 With the overthrow of Saddam Hussein in 2003, leaders made it very apparent that they expected the new Iraq to be an Islamic state. One of the first secular laws to be repealed was the personal-status law, which resulted in the placement of all family laws under the rules of shari‟ah. However, one should not presume this to be an act necessarily detrimental to women. This largely depends upon who is interpreting the sources. Coleman states that reform may be easier to come by if feminists adopt an Islamic worldview rather than arguing from a secular viewpoint, “In many Islamic countries, reformers have largely abandoned attempts to replace sharia with secular law, a route that has proved mostly futile. Instead, they are trying to promote women‟s rights within an Islamic framework. This approach seems more likely to succeed, since it fights theology with theology.”38 Uzoamaka Okoye notes that many Muslim feminists “have argued that the Qur‟an advances the rights of women and that Prophet Muhammad surrounded himself with independent, self-sufficient women. They [Muslim feminists] argue that fatwas of the jurists are in many ways diametrically opposed to Islamic teachings, the Qur‟an and the Sahih Hadith of the Prophet Muhammad.”39 Okoye avers that one obstacle to understanding that women are guaranteed rights under Shari‟ah, is the failure to differentiate between Islamic law from Islamic culture.40 New Iraq is attempting to ensure the rights of women by including them in the decision making process. The new constitution grants women twenty-five percent of the seats in parliament. This is quite remarkable considering the United States Congress is only fifteen 38 Isobel Coleman, “Women, Islam and the New Iraq”. 39 Uzoamaka Okoye, “Women’s Rights Under Shari’a: A Flawed Application of the Doctrine of ‘Separate but Equal”, in Women’s Rights Law Reporter, Vol. 103 , Spring 2006 (New Jersey: Rutgers University Press, 2001), 12. 40 Ibid. 13 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m percent female.41 Nevertheless, one should not presume that the mere presence of women in parliament will result in equality between the sexes. The key to garnering equal rights between the sexes, according to Coleman, is education.42 If women are informed of the rights accorded to them under shari‟ah, they will be more vocal in making sure they are implemented. To bolster her argument Coleman cites the current environment in Iran, “as Iran, with its female literacy rate of more than seventy percent, has shown, educated women inevitably become effective advocates for their own rights.”43 Of course, one of the fears facing reformers in new Iraq is that the adoption of shari‟ah law will result in the country becoming a repressive theocracy like Khomeini‟s Iran or Afghanistan when it was under Taliban rule. Having already addressed the practice of child- marriage in Afghanistan, I would like to take a moment to consider the changing situation in Iran. Prior to the Islamic revolution of 1979, Iran had a minimum marriageable age of eighteen. However, as Haleh Afshar highlights, “Shi‟a ulama in general and Khomeini in particular have taken the age of nine for girls as the age of puberty… Accordingly immediately after the revolution the age of marriage for girls was lowered to nine. But in an extraordinary retrograde move even this lower age limit was removed.”44 This was consistent with Khomeini‟s view that the best thing a guardian could do for his daughter is to marry her off before she reached puberty.45 Several problems with child-marriage and forced child-marriage followed. This led to a wide-ranging debate over reinstating a minimum marriageable age law. Ayatollahs Mohamad 41 Coleman, “Women, Islam, and the New Iraq”. 42 Ibid. 43 Coleman, “Women, Islam, and the New Iraq”. 44 Haleh Afshar, Islam and Feminisms: An Iranian Case-Study (New York: St. Martin’s Press, Inc., 1999), 147. 45 Ibid.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 14 Ebrahim Jomati and Musavi Bojnurdi led the campaign to amend the Constitution. Jonati tried to convince the ulama that although the age of nine is given as the age of puberty in some of the hadith, “by the end of the twentieth century it was the duty of the religious establishment to contextualize these views and revise their position.”46 Jonati claimed that this revision would be consistent with the ulama‟s duty of ijtihad. He goes to state “it may have been the case that at the inception of Islam when the ahadis were being reported girls did reach puberty at the earlier age of nine… but at the end of the twentieth century this is no longer the case.”47 During Khomeini‟s lifetime, one would not dare question his definition of puberty or his views on marriage. However, with his demise in 1989, dissenting views were allowed to come to the fore. Addressing the issue of forced marriage Bojnurdi fights for the right for all women to have a say concerning their marriage. Specifically, they ought to be able to form their opinion on the basis of knowledge and understanding, and should have the ability to negotiate their marriage contracts.48 He then goes on to add, “It is quite obvious that a nine-year-old can do neither and should not be placed in an impossible situation. Since Islam applauds that which is reasonable as being legitimate and abhors that which is not, it is no longer tenable to maintain that age as the legal minimum for marriage for girls.”49 While the practice of child-marriage makes Iran subject to much criticism from other nations, it is quite interesting to see the inverse relationship Khomeini‟s policies have had on the average age of women who marry. In 1986, the average age of marriage was twenty, in 1996 it had risen to twenty-two.50 The large corpus of scholars, clerics, and elite Iranian women has had 46 Ibid. 47 Haleh Afshar, Islam and Feminisms: An Iranian Case-Study, 147. 48 Ibid., 148. 49 Ibid. 50 Ibid. 15 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m a remarkable impact on the perceptions of Iranians. In 1994, even President Khamenei vocalized his dislike for the practice, calling it “ugly and un-Islamic” and claimed it should end.51 The three examples above study societies that are either in dire need of reform or on the cusp of reform. The examples that follow zero in on instances where reform has been implemented successfully and how this has come about. In order to gain a better understanding of the reform process, one needs to understand its foundations; the Ottoman Law of Family Rights (OLFR) of 1917 is seen by many as providing that foundation. This is not to say that the state did not have regulations in place beforehand. Previously, as Judith Tucker makes clear, “the Ottoman state over-saw the system of Islamic courts that registered marriage contacts and adjudicated marital conflicts, and even attempted, at times to require all marriages be registered in court.”52 However, the multiplicity and diversity of schools, doctrines, courts and jurists made comprehensive state control impossible. The OLFR, therefore, can be seen as an attempt by the state to regulate the practice of marriage and bring its citizens in line with their view of the future. One area the OLFR focused on was establishing a minimum marriageable age. Articles 4- 6 of the OLFR forbid guardians from marrying off girls younger than nine and boys younger than twelve. The OLFR required the permission of the court for the marriages of girls between the ages of nine and seventeen and boys between the ages of twelve and eighteen.53 To justify the new regulations, drafters of the laws drew upon the writings of three early jurists, Ibn Shubruma, „Uthman al-Batti, and Abu Bakr al-Asamm, who all argued that there was no legal justification for marrying off a child before she had reached puberty. 54 Tucker 51 Ibid., 149. 52 Tucker, Women, Family and Gender, 70. 53 Ibid. 54 Ibid.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 16 illuminates how “In the Explanatory Memorandum accompanying the OLFR, the framers validated these articles not only on the basis of these minority opinions, but also by citing the evils of child marriage and the responsibility of the Ruler to impose rules for the good of the community.”55 The OLFR set the standard for later personal status laws enacted in Algeria, Egypt, Indonesia, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Pakistan, Syria, Tunisia, and Yemen. The majority of these laws required a marriage to be registered with the state in order to be legally recognized.56 Before the marriage is registered personal information about the couple such as the participants‟ names, religions, occupations, parents, and marriage eligibility is collected and verified by the court. Denial of registration was the primary means of implementing the new laws. If it was determined that a proposed marriage did not adhere to new regulations on minimum age limits or prohibitions on polygamy, the marriage would not be registered. Those who were party to a marriage in defiance of these laws were often subject to criminal penalties.57 Norman Anderson spells out the resulting age limitations instituted in various Muslim countries. Since the passing of the Indian Child Restraint of 1929, citizens of India or Pakistan who marry a groom under eighteen or a bride under fourteen, face penal sanctions. The Muslim Family Laws Ordinance of 1961 raised the minimum age of a bride to sixteen in Pakistan. Following the precedent set by the OLFR, many countries adopted a minimum age of eighteen for grooms but varied on the minimum age for brides. She must be seventeen in Jordan and Syria, sixteen in Algeria, and fifteen in Tunisia and Morocco. However, a woman does not reach 55 Ibid. 56 Tucker, Women, Family, and Gender, 71. 57 Ibid. 71-72 17 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m the age of full competence to marry, and the right to marry without the court‟s or a guardian‟s permission, until she is twenty in Tunisia and twenty-five in Morocco.58 The route taken by Egypt was quite different from the cases above. Here the state has not placed any restriction on the guardian‟s right to marry off his minor child. Yet, as Anderson elucidates, “the exercise of this right has been greatly discouraged by legislation that forbids marriage registrars to register any union in which the bride and bridegroom have not reached the ages of sixteen and eighteen respectively, and that precludes the court from entertaining any matrimonial cause whatever where the parties have not reached these ages.”59 One of the most informative models for reform is that of Indonesia. Indonesia is predominately Muslim, and houses the largest Muslim population of any country in the world. It provides the reader with a stunning example of the importance of reforming laws Islamically rather than imposing “modern” Western notions of morality on citizens from non-Western countries. It also speaks to the value Indonesians place on the well-being of their children and how emphasizing this can lead to social reform apart from government regulation. During the Dutch colonization of the East Indies debates over child-marriage were quite common, the colonizers would often write of the evils of the practice, how it carries overtones of sexual abuse, robs children of their childhood, and deprives them of the right to choose their spouse. Differing opinions on child-marriage were couched in terms typical of the culture clash between colonizers and colonized; colonizers promoted their practice as “modern” and classified that of the colonized as “backward.”60 58 Anderson, Law Reform, 103-104. 59 Anderson, Law Reform, 103. 60 Susan Blackburn and Sharon Bessell, “Marriageable Age: Political Debates on Early Marriage in Twentieth- Century Indonesia” in Indonesia, vol. 63, April 1997, 107-141. Accessed on 10/23/2010. http://www.jstor.org/stable/3351513?origin=JSTOR-pdf. 108.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 18 Dutch and Indonesian public officials compiled a list explaining why there was a high prevalence of child-marriage in the region in an attempt to correct the roots of the problem: Because children went to work early, they grew up quickly. Parents wanted to increase the size of the family rapidly, because children were later expected to look after their parents and/or the help of a son-in-law was desired. Parents were keen to receive the contributions which guests customarily made at a marriage feast. People were ignorant of the disadvantages of early marriage both for the couple and for their offspring. Parents were anxious to find a man to care for their daughter at an early age for fear she would later “go astray” and lessen her chances of marriage.61 The compilers found two main reasons for the decline of child-marriage in a number of districts - one economic and the other the influence of “the European example.”62 In districts where parents had enough money to pay a hired hand, the help of a potential son-in-law was in less demand. Somewhat paradoxically, the report also claimed that in districts where the cost of living had risen child-marriage was less frequent because dowry or wedding feasts were less affordable.63 Although most child-marriages were essentially nothing more than betrothals, the Dutch found the possibility of early consummation of under-age marriages especially heinous. It was for this reason alone that they took legal action. Article 288 of the Criminal Law Code of 1915, mandates that “A man who has sexual intercourse with a woman whom he knows or may well suspect is not yet of marriageable age, and inflicts physical injury on her as a result, incurs a jail sentence of at most four years,” with stronger penalties in cases where the injuries are more serious.64 As Susan Blackburn clarifies, “As was later admitted, the law was unenforceable and not policed.”65 In Bandung, the regent took action to restrict child-marriage, requiring officials to prevent any marriages with participants under the age of sixteen from being contracted. In a 61 Ibid., 113. 62 Susan Blackburn and Sharon Bessell, “Marriageable Age”, 113. 63 Ibid. 64 Ibid. 65 Ibid. 19 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m letter to the Director of Civil Service, Rudolf Kern, the Director of Native Affairs, mentions that this action, which was done on the initiative of a “heathen government”, would become an assault on religion. According to Kern, the only advisable answer would be to rely on the social evolution that was already underway in the Indies.66 Noting the ineptitude to bring about change on the part of the government, the women‟s organization Isteri Sedar (Aware Women) began publishing articles denouncing the practice of child-marriage in its journal Sedar. The change that they called for was not just in people‟s behavior but in Islamic law itself. They argued that “women must have the freedom to control their lives and that child marriage was likely to damage the health of both the wife and her offspring.”67 In 1937 the colonial government attempted one last effort to confront the practice of child-marriage head on when it launched a draft of an ordinance for optional monogamous marriage for Muslims. As Blackburn and Bessel explain, “Although the main thrust of the proposal was to offer Muslim couples the option of registering monogamous marriages, it also stipulated a minimum age for such marriages: eighteen for men and fifteen for women.”68 Despite wide support from women‟s groups, the ordinance was contested by both Muslim organizations and nationalist parties who viewed this as another means for colonial powers to intrude upon personal affairs. The government ultimately withdrew the proposal after only a few months of discussion. This would be the end of the Dutch‟s efforts to reform Indonesian marriage practices.69 66 Ibid., 116. 67 Susan Blackburn and Sharon Bessell, “Marriageable Age”, 119. 68 Ibid., 125-126. 69 Ibid., 126.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 20 Indonesia gained its independence in 1945 when Indonesian nationalists took control of the state. In 1946, the Ministry of Religion issued a law dealing with the registration of marriage, divorce and repudiation. This was followed in 1947 by an instruction to marriage officials to discourage and avoid registering forced and child marriages. Since this was only an instruction and not a law, it was not fully implemented.70 Even under a new government, reform was hard to come by, Blackburn claims: the numerous proposals that were developed between 1945 and 1973 were all doomed to failure because „it was impossible to reconcile the interests of conflicting groups,‟ with Islamic groups favoring the status quo, Christian groups lobbying for initiatives that would reinforce their own marriage rules, and most women‟s organizations and some liberal Muslim groups advocating sweeping reforms.71 Marriage reform finally came to Indonesia in 1974, where legislation was adopted that set the minimum ages of sixteen and nineteen for females and males respectively. Further, the legislation deemed that all persons under the age of twenty-one were required to obtain parental consent before marrying. Those who drafted the law claimed population control as one of its main considerations in setting age limits on marriage.72 This may have influenced how citizens reacted to the law, seeing that there was not a direct correlation between the passing of the law and increases in the average age of marriage. It is plausible that other outside factors played a more crucial role in changing people‟s perceptions of child-marriage in Indonesia at this time. Certainly one of the major influences on social opinion was the work of child advocacy groups such as UNICEF. Several of these groups emphasized the lack of education available to young brides and the health risks associated with early marriage such as high maternal and infant mortality rates. One of the most troubling 70 Susan Blackburn and Sharon Bessell, “Marriageable Age”, 128. 71 Ibid., 130. 72 Ibid., 133-5. 21 | B o w d e n : M a r r i a g e a b l e A g e i n I s l a m aspects highlighted by these groups was the correlation between early marriage and prostitution.73 Fathers wanting to protect their young daughters from the perils of unrestricted sexual desire would have a hard time reconciling marrying off their young daughters with the realization that it often leads to such a deplorable situation. The situation in Indonesia demonstrates how education is often more effective than government regulations in bringing about social change. Conclusion: In the preceding pages I have argued that the polemicists‟ arguments that claim Muhammad was pedophile have little basis in reality. To prove this I have placed the tradition in its proper historical context and placed it beside America‟s laws concerning legitimate sexual relations. I find Kecia Ali‟s assertion that “It is indeed extremely hypocritical and „self righteous‟ to judge other centuries, based on new criteria”74 to be right on the mark. I have also argued that the rulings of the jurists intended to promote maslaha, or more specifically the protection of a human‟s ability to procure the five essential elements for their well-being, namely, their religion, life, intellect, offspring, and property. When the rulings of the jurists are viewed through this lens the reader is able to decipher the universal truth that ought to be mined from Muhammad‟s actions – that even when it is permissible to have sexual relations, i.e. for a groom to sleep with his bride, there is an age when this practice is permissible and an age when it is not. 73 Ibid., 137. 74 Kecia Ali, Sexual Ethics & Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence (Oxford: ONeworld Publications, 2006), 143.  B o w d e n : M a r r i a g e a b l e A g e i n I s l a m | 22 When the law is viewed in such a way, reform is much easier to come by. This is true because reformers are able to argue that maslaha is at stake when the young girls are married at a young age. A marriage of this sort not only affects the intellect, insofar as it limits access to education, but it also jeopardizes the life of the girl and her offspring. Furthermore, insofar as it subjects Islam to ridicule, it also harms Muslims‟ religion. Another integral aspect of understanding the debate is being able to distinguish between Islamic culture and Islamic law. This is admittedly not an easy task, but by comparing minimum marriageable age laws between states in the U.S. one gains a better understanding of the role culture plays in determining social mores. This is perhaps another reason why simply grafting secular Western marriage laws onto foreign cultures often ends in failure. However, the main issue being addressed was the logical error that the Taliban and other repressive regimes make when they try to universalize a particular action of the Prophet and then claim that this act is normative for all believers. To simply cut and paste historical juridical precedents to contemporary juristic crises closes the gate of ijtihad and dooms the practice of Islamic jurisprudence to the realm of insignificance.