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The Role of Consensus in the Issue of Prepubescent Marriage
Abstract
In the early 10th century, certain scholars became keen to downplay the fractured nature of the Islamic legal culture. Manuals listing legal topics that had been resolved through consensus (ijma') became tools of legal uniformity that served to extend state control and state-sponsored scholarly authority, a fact illustrated by how quickly Ibn Taymiyya (d. 1328) landed in prison for rejecting a claimed scholarly consensus on triple divorce utterances. By employing Ibn Taymiyya’s methodology of sifting through early opinion, and closely investigating legal debates prior to the onset of “consensus writing,” it is possible to challenge other consensus claims. This paper explores the role of consensus in the evolution of legal positions on a father’s ability to compel his minor daughter to marry. I explore early consensus writing (Ibn al-Mundhir, d. 930, al-Marwazi, d. 906, al-Tahawi d. 933, and Ibn 'Abd al-Barr, d. 1070) and contrast it with pre-consensus discussions of the issue (al-Awza'i, d. 774, Malik, d. 795, al-Shaybani, d. 805, al-Shafii'i, d. 820, 'Abd al-Razzaq, d. 826, Ibn Abi Shaybah, d. 849, and Sahnun, d. 855), considering in particular how child marriage rules were initially applicable for both boys and girls, and how the consensus claim eclipsed many early opinions emphasizing consent in marriage contracts. Consensus was also used as a device for determining a specific meaning for the famed report of 'A'ishah that she was married at seven and her marriage was consummated at the age of nine. Al-Shafi'i introduced this report into the debates over a father’s authority over both his children, and early 10th century jurists began claiming consensus on the report’s implications. Ultimately, the claimed consensus on a father’s right to compel his prepubescent daughter to marry functioned as legal shorthand. Jurists could not agree over the basis for female legal capacity (pubescence or sexual experience), the parameters of a groom’s “suitability” (the condition for the permissibility of a father’s compulsion), when a female child can tolerate sexual activity or the basis for her maintenance if she cannot, or the definition of childhood itself. The claim of consensus effectively circumvented all of these debates while affirming a father’s power over his daughter, even when his ability to compel his son came to be challenged. By the 13th century, little trace of the crucial--yet still unresolved-- early debates remained.
Discipline
Law
Geographic Area
All Middle East
Sub Area
7th-13th Centuries