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Debates on Sharia: How Historical Legal Practices Affect the Present

In the 1990s and onwards, the issue of marrying off young girls has been a recurrent topic. At the center of these discussions is the question: “Do parents have the authority to marry off their young daughters, or not?” This issue, often under the title of ‘child brides,’ has been the subject of numerous weekly magazine and newspaper series.

Is this the only topic of debate? Of course not. There are many others, such as the concepts of dar al-Islam (the abode of Islam) and dar al-harb (the abode of war), the execution of apostates, the treatment of dhimmis (non-Muslims living in an Islamic state) and the taxes levied on them, the notion of an Islamic state, the rights of non-believers in a Sharia state, conquest movements, women’s rights, the punishment of thieves by hand amputation, flogging for alcohol consumption, and hundreds of other issues.

Let’s continue with the topic of child marriage and the authority of the child’s guardian to marry them off. These are human concepts, subject to tradition, customs, and laws. Denying this is pointless. They exist and have been implemented. In fact, they are still practiced in various countries, including those in the Islamic world.

So, what is the problem?

The problem is that these practices are part of Islamic law—or more accurately, the legal system once applied by Muslims.

But why is this a problem?

We have access to the legal rulings once implemented by the Byzantines and Romans, even teaching them in legal history courses at law schools. But the same cannot be said for Islamic law.

Muslims apply certain legal rulings, such as those related to worship, expiation oaths, and inheritance distribution, based on their free will. However, it is assumed that all these rulings should still be in effect today.

In other words, if a state were to place Islamic values at the center of its administrative and legal system, it is believed that these rulings would be reinstated. However, anyone who understands the nature of law and has observed the life of Muslims over the last millennium would know that this is not the case and will not be.

We see this in the debates surrounding child marriage and the guardian’s authority to marry off a young child. Some people believe that the parent’s authority to marry off a young child, which reflects the socio-cultural background of the time it was formulated, is still valid today and implement it.

They legitimize their actions by saying, “This is how it is in Islam.” They even go so far as to reject the legal age limit for marriage, which is a common human achievement of the state they are citizens of, saying, “Even if the current law states otherwise, Islamic law says this!” They universalize and absolutize the human jurisprudence that was valid in the social context of centuries ago.

An application left over from pre-Islamic Arab society… In jurisprudential terms, they do not question the correctness or incorrectness of parents marrying off their young child as “compelling guardians,” nor do they say, “Free will is essential in the marriage contract, and the child being married off in such a contract lacks free will, making the marriage invalid and contrary to the general principles of Islam.” They do not consider that this practice, which has a sociological basis from pre-Islamic Arab society where women had no name, might have been accepted but could be invalid in the different socio-cultural contexts of the past 14 centuries. Some only weakly argue, “Marriage is separate from consummation, and the girl can object to the contract when she reaches maturity,” but such explanations do not satisfy anyone.

The recent debate on “Sharia” between Diamond Tema and Asrın Tok, which has occupied Turkey’s agenda in various aspects for the past 15 days, prompted me to write this. The fundamental issue in the topics discussed during that 2-hour 11-minute debate is this: confusing Islam as a religion with the historical political, economic, and legal practices of Muslims. The mix-up between the universal, fixed, and timeless values and teachings of the religion with those that are changeable. Unfortunately, this is the common point where both sides of the debate converge.

I have been careful not to write or speak about this topic while there was a lot of noise, where every voice and the hammer of politics saw every problem as a nail. After things calmed down, I wrote this article. In the coming days, I plan to shoot a short video on ‘what Sharia is and what a Sharia state is,’ which is at the heart of the debate.

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Dr. Ahmet Kurucan is a an author and scholar focusing on Islamic Studies and Law.

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