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This appears to rule out a father forcing his virgin daughter into marriage without consulting her and obtaining her agreement, or at least her silence (though this is obviously open to abuse for the reasons mentioned above). However, Kecia Ali explains that the jurists were nevertheless in agreement that "a father's power of compulsion over his virgin daughter is unquestioned so long as she is a minor." The founders of two of the four major schools of Sunni jurisprudence, Malik and Shafi'i, employed different strategies to get around the apparent implications of the above hadith. | This appears to rule out a father forcing his virgin daughter into marriage without consulting her and obtaining her agreement, or at least her silence (though this is obviously open to abuse for the reasons mentioned above). However, Kecia Ali explains that the jurists were nevertheless in agreement that "a father's power of compulsion over his virgin daughter is unquestioned so long as she is a minor." The founders of two of the four major schools of Sunni jurisprudence, Malik and Shafi'i, employed different strategies to get around the apparent implications of the above hadith. | ||
'''Malik's''' legal methodology considered the custom of the people of Medina as more authoritative than this hadith. Ali notes that "For Malik, either virginity ''or'' minority allowed compulsion, so a non-minor virgin could be compelled. A previous marriage, if unconsummated, did not remove a father's power of compulsion".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> {{Muwatta|28||6}} and {{Muwatta|28||7}} are examples of hadiths in Malik's Muwatta on this topic. | '''Malik's''' legal methodology considered the custom of the people of Medina as more authoritative than this hadith. Ali notes that "For Malik, either virginity ''or'' minority allowed compulsion, so a non-minor virgin could be compelled. A previous marriage, if unconsummated, did not remove a father's power of compulsion".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> {{Muwatta|28||6}} and {{Muwatta|28||7}} are examples of hadiths in Malik's Muwatta on this topic. The ''Mudawwana'' which also records Malik's opinions, prefaces the hadith about consultation with the explanation that it was only referring to the fatherless virgin, claiming that the word wali (guardian) there excludes the father.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35</ref> | ||
'''Shafi'i''' interpreted the hadith quoted above such that a father could still compell his virgin daughter into a marriage contract. Baugh explains that he did so by asserting that it refers to fathers as guardians, and the consultation of a virgin must be optional since otherwise there would be no difference in the right to consent between a virgin and non-virgin. He further argued that the consultation mentioned in the hadith is of psychological benefit to her and good manners, but she was in any case under obiligation to obey her father as she has no authority. The virgin daughter and prepubescent son are equally under the father's authority when contracting marriage.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 124-126</ref> As for the rarer case of non-virgin minors, | '''Shafi'i''' interpreted the hadith quoted above such that a father could still compell his virgin daughter into a marriage contract. Baugh explains that he did so by asserting that it refers to fathers as guardians, and the consultation of a virgin must be optional since otherwise there would be no difference in the right to consent between a virgin and non-virgin. He further argued that the consultation mentioned in the hadith is of psychological benefit to her and good manners, but she was in any case under obiligation to obey her father as she has no authority. The virgin daughter and prepubescent son are equally under the father's authority when contracting marriage.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', pp. 124-126</ref> Kecia Ali similarly says that for Shafi'i the consultation mentioned in the hadith was only a recommendation and if a father contracts a marriage for a baligh (pubescent) virgin it is not rescinded even if she objects. As for the rarer case of non-virgin minors, Ali says that according to Shafi'i such girls were forbidden to be married again at all until they reached majority since a non-virgin could not be married off without her consent, but a minor could not give valid consent. For both Malik and Shafi'i, the father's power to compel his virgin daughter to marry continued even after the age of majority. She notes that for Shafi'i, "there was no real difference between a minor and a bāligh female so long as she remained a virgin", though he recommended that daughters who have reached the age of majority are consulted.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 35 - 36</ref> Baugh similarly says that Maliki and Shafi'i jurists believed that a female could never reach majority for purposes of freedom from her father's guardianship if she remained a virgin.<ref>Carolyn Baugh, ''Minor Marriage in Islamic Law'', p. 56</ref> | ||
Kecia Ali says regarding another of the four major jurists, "'''Abū Ḥanīfa''' rejects compulsion at majority for all females, both virgin and non-virgin". There is no record of his ruling in the case of non-virgin minors, though later Hanafi texts are explicit that majority is determinative: "a ''bāligh'' female could not be coerced even if she was a non-virgin, but a minor could be, even if she was a ''thayyib''".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> | Kecia Ali says regarding another of the four major jurists, "'''Abū Ḥanīfa''' rejects compulsion at majority for all females, both virgin and non-virgin". There is no record of his ruling in the case of non-virgin minors, though later Hanafi texts are explicit that majority is determinative: "a ''bāligh'' female could not be coerced even if she was a non-virgin, but a minor could be, even if she was a ''thayyib''".<ref>Kecia Ali, "Marriage and Slavery in Early Islam", pp. 33</ref> | ||