By Aaron Spevack
Source: Ibrāhīm al-Bājūrī, Ḥāshiya al-Shaykh Ibrāhīm al-Bājūrī ʿalā Sharḥ al-ʿAlāma Ibn al- Qāsim al-Ghazzī ʿalā Matn al-Shaykh Abī Shujāʿ. Beirut: Dār al-Kutūb al-ʿIlmiyya, 1999.
The excerpt that I have provided for our discussion is from Hāshiyat al-Bajūrī ‘alā Sharh ibn Qāsim al-Ghazzī ‘alā Matn Abī Shuja’ (henceforth referred to as Hāshiyat al-Bajūrī). The text itself is a two-volume gloss on a popular commentary on a short summary of key rulings in each of the chapters of Fiqh according to the Shāfi’ī school of law. The context is that we are in the chapters of Marriage and Divorce, specifically the right of a man to return to his divorced wife before the mandatory post-divorce waiting period has passed. What interests us here, however, is a discussion of the invalidly and harm of child marriage, especially in 19th century Cairo, and a connected discussion of talfīq, a legal tool that produces new rulings based on patchworking of disparate precedents from the past.
After explaining some of the rulings and conditions of a man’s return to his wife upon reconsidering an already pronounced divorce, Ghazzī says that the return by a drunk man is valid, but not that of an apostate, child, or one who is insane. The apostate lacks the condition of being Muslim, which often is included among the conditions for many transactions. These conditions also often include that one must possess a sound mind, be of age, and be a Muslim. Among the remaining examples -the child and the insane person – are those who lack the quality of having a sound mind or fully functioning intellect.
If an intoxicated person – who is no longer of sound mind – can return to a marriage contract, why not others who are also of those counted among those who lack proper intellectual capacity? The quick answer is that children and the insane are not among those capable of marrying (ahliyat al-nikāh) – unlike the intoxicated person whose intoxication is merely temporary and short-lived – and therefore not those who would be in a position to declare a divorce such that they might then return to their marriage. Bajūrī’s gloss provides some further clarity here; he indicates that Ghazzī is not merely emphasizing the obvious – that one who can not marry can not divorce and therefore can not return to a marriage – but rather that there is something more to this. There must be a reason that the advanced student of fiqh should be aware of this condition. There is a social reality that this addresses; it is not mere pedantry or added for extra emphasis.
The issue at hand is a deeply problematic practice of marrying off young boys and the relying on the practice of talfīq or legal patchworking by the masses and those judges who recognize the results of such patchworking. Legal patchworking is not merely following other rulings from other schools of law. It is, rather, the mixing and matching of rulings from different schools in a single action that produces a ruling for that action not found in any school. There is no way that one can get to the issue of the validity or invalidity of a child’s returning to a marriage contract without an elaborately constructed and ethically problematic scenario that involves talfīq.
Elsewhere Bajūrī discusses differing opinions on the permissibility of talfīq, but it is here that we see him explicitly against and sees it as part of a greater problem in that it opens a door to socially harmful practices, namely harming children by forcing them into marriage, rather than just negligence in acts of worship.
Excerpted in what follows, I have included an edited passage from a paper called Reverence and Realism that I presented at MESA in 2014 and which serves as the foundation of my current research at the ILSP. The details of the scenario in which a child might be in a position to return to a marriage contract is derived from a talfīq-based issue regarding a woman who has been thrice divorced by her husband, and therefore cannot return to him unless she remarries someone else, then consummates that new marriage, and then obtains a divorce.
In a disturbing scenario, al-Bajuri explains how those in his era whom he describes as “the lowlife who persistently skip the prayers and commit sins” have abused talfīq in the matter of an irrevocable triple-divorce. Summarized here, the case involves a thrice-divorced woman who marries a pre-pubescent minor before a Shāfi’ī judge who recognizes the validity of such a marriage with certain conditions, and then, after consummation, is divorced from him by the command of his guardian who may do so for his maslaha (benefit) according to a Mālikī or Ḥanbalī judge, even if such a judge would consider other aspects of the contract invalid. She then returns to her former husband before a Shāfi’ī judge, who would consider the previous marriage to a minor valid grounds to return her to her former husband.
He then mentions that the scholars of his time are nearly unanimous in considering this talfīq-based scenario invalid for a number of reasons. Narrating from their teachers such Tukhī, Bishbishī, and Hifnī, Bajūrī and his contemporaries consider this invalid patchwork of rulings to be impermissible to act upon, since among the conditions of allowing the marriage of a minor are:
- it must be in the child’s best interest (maslaha)
- his father or grandfather who marries him off must be legally upright (‘ādil)
- the wife’s guardian must also be legally upright
- and two upright witnesses must also be present
If any of these conditions are absent, then the contract is invalid. Bajūrī mentions that the first condition of the child’s best interest (maslaha) is absent, indeed such a marriage is extremely harmful to him. The least of the harms according Bajūrī is that it leads to the child being desirous of women, which implies that this in itself is psychologically harmful enough to the child to negate a claim of maslaha and that, furthermore, greater harms are also present.
Bajūrī also addresses some of the erroneous claims of those who consider that such a marriage could be to the child’s benefit due to money he might receive from the arrangement. But that is not the maslaha according to Bajūrī; the maslaha that the Shāfi’īs consider worthy of permitting the marriage of a minor is that the wife would look after a child who might otherwise not have anyone to do so. Furthermore, most of the time, this money is paltry and insignificant he says, and anyone who would marry off his child in his times is from the aforementioned lowlife who neglect their prayers and persist in forbidden matters. Later in the passage, after further discussing the invalidity of such a talfīq-based contract, he further laments about the condition of being legally upright exclaiming “where are they [the legally upright] these days?!”
A few important features of this discussion are as follows:
- This is a rare moment in which Bajūrī comments on his contemporary society, when one could otherwise imagine him writing much of his works at any point between the 15th and 19th century.
- His rigorous condemnation of those involved in such practices, and clear concern for the harm it entails to children.
- His considering that the moral decay of society at his time would make it difficult to find legally upright parties for the contract.
- He cites opinions by his older contemporaries such as Hifnī as support against talfīq.
- Bajūrī mentions that the justification in the Shāfi’ī school for allowing one to marry off a minor is the child’s maslaha, and indicates that this case is radically opposed to it. He declares it mafsadah, the opposite of maslaha.
- He mentions that the child’s maslaha is a necessary condition, and when it is absent, indeed when it leads to harm the marriage of a (male) child should not be permitted. It seems that this principle is easily transferable to the issue of marriage of girls in some contemporary societies, and thus it is possible to affect positive change where oversimplified understandings of pre-modern sharī’a law often slow down the process of protecting minors.
While the mere presence of the possibility of child marriage and other disturbing scenarios is enough to cause hostile responses to traditional fiqh by many modernist and secularist parties in the Muslim world, this brief study and the larger study of which it is a part instead finds actionable precedent in such discussions that can result in legislation that protects children from the harms of child marriage, for example, due to a careful assessment of the maslaha claimed or observed. The absence of such maslaha then potentially entails the prohibition of certain practices that may have been considered justifiable at one time but no longer. This has far reaching implications I hope to continue to explore in future papers and my current research.