Minor Marriage in Early Islamic Law

Beyond the Binary: Gender and Legal Personhood in Islamic Law

“…A great deal of juristic discussion focused on the restrictions that could be placed on an individual if that person reached legal majority but did not exhibit the requisite mental maturity necessary for acquiring legal agency. 27 These conversations also seem to indicate the possibility that a child might be able to demonstrate rushd before arriving at legal majority. For instance, one of the key means by which rushd could be established was through commercial transactions.…”

“…The dissonance between the sexed body and the publicly performed gender role was of little consequence as long as the sex/gender/sexuality matrix aligned. 27 Dror Ze'evi's work on sexual discourses in the Ottoman Middle East also highlights the recognition of human sexual and gender diversity. 28 He argues that Ottoman medical treatises saw the human body as a one-sex body in which the sex organs identified as female were seen as inversions of the male.…”

“…The adult man, however, should be punished, as he played his role as an active, penetrating subject and fulfilled his sexual desire illicitly. 27 In this case, since the girl takes on status as receptacle and receives the penetrative act, the issue of legal significance is not her legal capacity but her desirability. As long as the minor girl is of an age that is considered desirable, she is legally recognized as a receptacle where a man's desire can be licitly or illicitly fulfilled.…”

“…It is quite possible that opportunities for employment would have been more restricted for enslaved women; indeed, this possibility is reflected in the juristic discouragement of entering into a contract with an enslaved woman who did not have a licit source of income. 27 In her historical account of women and enslavement in the late Ottoman Empire, Madeline Zilfi notes this gendered dynamic in enslaved women's possibilities for emancipation. 28 Women, she argues, seldom had the financial resources or opportunities to be able to negotiate for their freedom.…”

“…The most obvious of these is the fact that the minor son, also sexed male, was subject to compulsion in marriage. While the marriage of minor sons was perhaps less prevalent as a social practice than the marriage of minor daughters, 27 as a matter of legal principle the son's masculinity did not grant him the self-determination that would protect him from compulsion. Similarly, the law did not recognize all fathers as patriarchs.…”