ACADEMIA Letters

Age of Consent in Classical Islamic Law

Justin Parrott, New York University Abu Dhabi

The age of consent to sexual relations is not rmly established in classical Islamic law like

it is in many Muslim and non-Muslim countries today. The appropriate age of sexual rela-

tions was set in traditional pre-modern societies by either individual families or local custom,

often linked to signs of physical puberty like menarche and pubic hair.[1] The lack of consis-

tency in this area of law is because societies throughout time and place widely vary in their

circumstances, resources, concerns, and priorities.

the Person Act legally allowed sexual relations with twelve year-olds.[5] Around the same time

in the United States, each state determined its own criminal law with age of consent ranging

from ten to twelve years of age. It is only at the beginning of the late 19th century, spurred

on by the Industrial Revolution’s rapid economic growth and technological development, that

attitudes shifted toward setting the age higher and higher.[6]

Therefore, it should not be surprising that the development of classical Islamic law into

centralized state systems followed a similar trajectory as other societies.

Why is this issue important today?

Sexual relations are religiously unlawful in Islam in the absence of a contract of marriage

or concubinage. Concubinage disappeared when the Muslim world martialed Islamic legal

arguments to abolish slavery,[7] so consent is now only relevant to marriage. The question of

consent to marriage is important to the modern context from at least two perspectives:

First, there is an ongoing controversy in regards to the practice of child marriage in some

places in the Muslim world.[8] Classical Islamic jurists generally allowed a marriage to be

contracted with a child, but not consummated through sexual intercourse until the child gained

puberty or was physically ready to do so.[9] While the classical law theoretically upheld the

right of children to consent to their marriage upon reaching adulthood, external factors such as

cultural and familial pressure can easily violate the spirit of these protections, if not the letter

of the law itself. The Prophet decreed that such a child must consent to the marriage before it

can be consummated.[10] Therefore, forced marriages are out of the question altogether, but

is younger than the legal age of consent is legally punished as “statutory rape.” Such bound-

aries are appropriate for highly developed modern societies, but the rule in most of the world

throughout time was based on local customs for good reason. As such, polemicists will cite the

rulings of some classical Islamic jurists who allowed, or appeared to allow, sexual relations

with girls as young as nine, which they claim is evidence that Islam promotes child abuse or

‘grooming gangs.’ Attacks of this nature permeate the internet, anti-Islam literature, and some

political discourse, despite being based entirely on misinformed historical anachronisms.

No consensus age in Islamic law

There is no consensus in Islamic law around the age of consent to marriage or sexual relations,

for the same reasons there was no consensus in the West or elsewhere. The Hana jurist Zayn

Islamic laws related to human-human interaction (as opposed to human-divine interaction)

tend to be governed by social custom rather than explicit statutes from divine revelation.[12]

Juristic and moral reasoning on the basis of general principles are often the determining factor

in judging social customs to be right or wrong, appropriate or inappropriate. This exible legal

device was derived from the statement of the Prophet’s well-known companion ʿAbd Allāh

ibn Masʿūd (d. 653), “Whatever the Muslims view as good is good to Allah, and whatever

they view as evil is evil to Allah.”[13] That is, a society of Muslims has been delegated some

authority to regulate their own social customs. For this reason, it is a valid opinion in Islamic

law for a xed age of consent to be set, or for it to be set by natural signs like puberty or

physical development. Today, the majority of Muslim countries have opted to set the age of

consent between fourteen and eighteen, although Bahrain is an outlier with a minimum age

of twenty-one.[14]

Operative principle: no harm or returning harm

Regardless of one’s opinion on the age of consent, all classical jurists accepted in principle

the illegality of causing harm to another person without a legitimate reason.[15] The Prophet

had issued a decree, “Do not cause harm or return harm.”[16] The jurists explicitly applied

this principle to sexual relationships. Yaḥyá ibn Sharaf al-Nawawī (d. 1277), representing

the Sha’i school, states this as a necessary condition when discussing the rights of wives to

living and maintenance, “If it is possible to have intercourse with her without harming her, he

ciples of permitting social customs in general, restricted by the imperative not to cause harm,

allow some exibility for Muslim societies to place appropriate boundaries to sexual relations

as they continue to develop. It is not a coherent Islamic legal argument to claim that because

the Prophet married his youngest wife Aisha at age nine, that it is permissible or benecial

for Muslims to do so while they live in greatly dierent social circumstances. There are other

considerations in the divine law that cannot be ignored. The issue of child marriage leading

to abuse is of dire importance for Muslims to address and through consultation achieve some

stable legal parameters appropriate to each region’s context.

At the same time, it is ignorant or disingenuous for anti-Islam polemicists to cite historical

facts and classical juristic rulings out of context to vilify Islam and Muslims today. Many of

these polemicists attempt to draw a straight line between these facts and the criminal behavior

of some Muslims today, though no such direct connection exists in reality. The gross stereo-

types born of this misinformation contribute to the ‘othering’ of Islam and Muslims, as well as

unfair demands for collective responsibility or even hate crimes.[19] A wider contextual anal-

ysis of classical texts, as attempted in this article, in tandem with appreciating modern realities

should demonstrate that any proposed connection between classical Islam and contemporary

criminality is simply tenuous at best.

References

York, N.Y: Macmillan Reference USA, 2004), 45. Available from Gale eBooks.

Church (Knights of Columbus Catholic Truth Committee, 1913). https://www.newadvent.

org/cathen/08504a.htm

[5] Matthew Waites, The Age of Consent: Young People, Sexuality, and Citizenship (Hamp-

shire: Palgrave Macmillan, 2005), 63.

https://chnm.gmu.edu/cyh/items/show/230

versity Press, 2006), 19.

2003), 7:127. Ibn Baṭṭāl (d. 1057) writes, “The scholars agreed that it is permissible for

fathers to marry o their young daughters even if they are in the cradle, except it is not per-

missible for their husbands to consummate the marriage with them until they are prepared

to safely have intercourse.”

[11] Zayn al-Dīn ibn Ibrāhīm ibn Nujaym, Al-Baḥr al-Rā’iq: Sharḥ Kanz al-Daqā’iq (Bayrūt:

Dār al-Kitāb al-Islāmī, 1970), 3:128.

Malik Fahd li-Ṭibā�at al-Muṣḥaf al-Sharīf, 1995), 29:17. Ibn Taymīyah (d. 1328) askes,

“As long as social customs are not armed to be prohibited, how can they be judged

to be forbidden? … The default principle of customs is permission, such that none are

disallowed but what is forbidden.”

[13] Aḥmad Ibn Ḥanbal, Musnad al-Imām Aḥmad ibn Ḥanbal (Bayrūt: Mu’assasat al-Risālah,

2001), 6:84 #3600. The chain of authorities is considered “fair” by Shu’ayb al-Arnā’ūṭ.

[18] Muḥammad ibn �Īsá al-Tirmidhī, Sunan al-Tirmidhī (Bayrūt: Dār al-Ġarb al-Islāmī,

1998), 3:386 #1921.

of the ‘Muslim grooming gangs’ narrative,” Race & Class. 61.3 (2020):3-32.