One of the reasons why I enjoy reading the posts at Professor Haider Ala Hamoudi’s blog Islamic Law in Our Times, is the way Hamoudi does not sugar-coat or apologize to or for anyone. He takes Western intolerance and false assumptions to task with the same blunt approach with which he states the cold, hard facts about the problematic modern practice(s) of Islamic law (and this does not, by any means, imply that he finds either worthless).

Ranking as one of the more controversial subjects when it comes to sharia is the issue of marriage. “Western” standards, with exceptions, generally hold that a monogamous marriage between a man and a woman both over a certain age (usually 16 to 18 ) is acceptable. It is shocking to hear about “marriage” practices in predominately Muslim countries like Afghanistan and Kyrgyzstan, so shocking that one may tend to condemn the practice of Islam altogether for the atrocities we see in those countries.

We hear of young girls not yet 10 years old forced into marriage by adults and we even hear this justified by Islamic authorities who cite the prophet’s marriage to a young girl, which, of course, at the time would have been a common-place.

It is hard to defend the practice of full grown men marrying 9 year old girls, but with the prophet’s life serving as an example of a life to which one should strive to imitate, a strict radical (i.e. to the root) interpretation of Islam sanctions pedophilia.

Hamoudi explains:

First, it is amply clear that the classical shari’a among all Sunni schools of thought sanctions marriage at puberty, which is assumed to be age nine for girls.

…

Has Islam been alone on this child marriage thing? Of course not, and it would be easy to say everyone did this in earlier times, that standards were different, that ideas of normativity were different, that behavioral maturities were different, that if you are going to criticize medieval Muslims for child marriage, then we have to talk about medieval Christian practice or precisely how much families and women’s rights and women’s sexual rights in particular meant in the antebellum South less than two hundred years ago for slaves, as Jefferson’s own example makes clear. And that’s all well and good for us Muslims to say that, except that these problems now exist predominantly in Muslim societies, and they are justified in those societies on the basis of doctrines and the example of the Prophet Muhammad. If they weren’t still all too common practices, if we Muslims didn’t insist on sullying the Prophet’s name through this sort of thing, then the issue wouldn’t arise, it would be dismissed as an artifact of history. We do have a role in this, as a community.

The professor goes on to argue, however, that the continuation of such practice a is not, in the whole, attributable to Islam:

…while the Yemenese poverty stricken peasant may argue that he is permitted to marry off his daughter at 9 if he wants to because the shari’a says as much, and he’d be right in the mainstream saying that, he can’t say, and doesn’t say, he is required to do it. When asked why he does then do it, according to a Sana University study, three reasons are given, not one of which is related to Muslim doctrine and one of which in fact is grossly violative of it.

The three reasons given in the study are (i) fear of poverty, (ii) cultural attribution of a young bride as being the most malleable and therefore desirable, and (iii) fear that the daughter will be kidnapped and forced to marry someone else.

(i) is obviously not related to the shari’a, clearly fear of poverty is an economic issue, I don’t want to be poor is not a statement derived from doctrine. (ii) is clearly not doctrinal either–you could argue that Islam requires women to be obedient to their husbands, but even then the conclusion that a nine year old is going to provide that level of obedience is a cultural one or at most a sociological one, not a religious one.

As for (iii) it’s a pretty gross violation of the shari’a. While you can say that a woman’s consent to marriage is not sufficiently respected in Islam, while that argument can be made, the idea that a father’s consent is not respected is under pure doctrine (whatever that is) just plain stupid. It’s all about the father, even when he cannot force the marriage, he can stop it, the shari’a almost never allows a woman to contract a marriage without the father’s consent, all Shi’a and Sunni schools I think accept this (at least for a woman never previously married, that is). So the idea that strangers can just walk in, kidnap the daughter, marry her to someone else and not have that marriage immediately declared invalid (fasid) without the father’s consent is well beyond what doctrine has to say. Lawlessness in Yemen surely has something to do with that as well. Clearly doctrine and the cultural, political, economic and social conditions intermingle to create this set of Yemeni practices. Neither doctrine alone, nor “culture” alone explain it.

Read the entire post here

I think Professor Hamoudi makes several good points in his analysis. But, arguing that (iii) is in violation of sharia is to misunderstand (iii). (iii) states that the reason why a father might marry off his young daughter is because of fear, namely, “fear that the daughter will be kidnapped and forced to marry someone else.” This is a real concern for people in countries like Kyrgyzstan, and even though the marriage may be invalid according to Islamic law, that does not negate a father’s fear that his daughter may be kidnapped, from wiki:

A couple may court for many months, but another suitor could still kidnap the young woman, as she is unmarried. The question, “What would you do if you were kidnapped?” is asked of many Kyrgyz women in their late teens and early twenties.

Marriage by kidnapping is, obviously, not approved by Islamic standards but this misses the point of (iii) entirely. (iii) is the proffered justification for child marriage by Muslims living in societies where bride kidnapping is a major concern. Hamoudi seems to have subtly (and maybe even subconsciously) gone off on a tangent, his train of thought derailed and he missed his stop.

Anyway, his posts are usually very good, and even though I think he messed up a bit on here, I still found it informative.