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Age of consent

Posted by Sen on May 18, 2011

On the Talisman discussion list, a participant noted:

> We appear to have three somewhat contradictory choices for the age of consent, according to Sen: 14 years old; 15 years old,; or “unknown” / not yet decided

The reason the question comes up, is that there’s a letter written on behalf of Shoghi Effendi that says “There is no specific minimum age mentioned in the Baha’i teachings at which girls may marry,” yet there is a specific minimum age for marriage given in the Kitab-e Aqdas. They can’t both be right. Or can they?

There’s a way of having your cake and eating it to, squaring the circle, even perhaps escaping the iron law of the exuding middle (see my profile).

A letter written on behalf of Shoghi Effendi (probably in 1943, since part of the letter was published in Bahai News, in January 1944) says:

“…He [Baha’u’llah] reveals in the appendix of that same Book: ‘The age of maturity is in the fifteenth year; women and men are alike in this respect.’”

This is published in Principles of Bahai Administration, with a footnote saying that it means the fifteenth birthday. The footnote is incorrect. The version given in Bahai News is a literal translation of Baha’u’llah’s words, in the 20th Question and Answer appended to the Kitab-e Aqdas: “The age of maturity is in the fifteenth year (dar saal-e paanzadeh ast), women and men are alike in this respect.”

It is odd that the translation given in the letter on behalf of Shoghi Effendi – the literal translation – has not been included in the published English version of the Questions and Answers, which says instead:

20. QUESTION: Concerning the age of maturity with respect to religious duties.
ANSWER: The age of maturity is fifteen for both men and women.

This is wrong; the translation given by Shoghi Effendi’s secretary is the correct one. The difference is that “the fifteenth year” begins at the 14th birthday. At least, that’s how it works in Persian, and in logic. If a child is, say, 18 months old, Persians would typically say ‘he is in his second year,’ whereas in European languages we would say ‘he is one year old.’

So the Aqdas says that 14 is the age of maturity “in one’s duties under the religious law.” This does not necessarily apply to Bahai administrative rights, which are not duties under the religious law: 21 is the age of maturity in that sphere, for the present. But it’s clear enough: 14 is the age of maturity for Bahai law.

But Not.

Because the same letter written on behalf of Shoghi Effendi says, “The ordinance of fasting is, as is the case with these three prayers … a spiritual and vital obligation enjoined by Baha’u’llah upon every believer who has attained the age of fifteen.”

So in one letter, he first translates the age of maturity as “in the 15th year” and also applies/interprets it as attaining “the age of fifteen” – which we do on our fifteenth birthday, at the beginning of our 16th year.

Why?

He doesn’t say, but I have two ideas. The first is that this relates to a norm in interpreting Islamic law, that the law is always interpreted to make the duties as light as possible, since God does not intend religion to be a burden:

“God wishes to make it light for you, for man was created weak.” – Surah 4 (of Women)

The opposite principle is often applied in Jewish legal interpretation, where it’s called building a fence about the Torah. The idea is to take the most stringent interpretation possible, since if one satisfies that then the other, possibly more accurate, but less demanding, interpretations are also satisfied. So in Islamic law, the reading minimizes the burden, while traditional Jewish interpretations err on the safe side, and maximize the stringency of the Law.

My thought is that, since “in the 15th year” allows any day up to the 15th birthday, and since fasting is a question of a religious duty, Shoghi Effendi chooses the lightest interpretation, which is the latest possible date, i.e., the 15th birthday, or for the very pedantic, the day before the 15th birthday, or the hour before, etc….

But then along comes the question of the minimum age of marriage. The Questions and Answers appended to the Aqdas, no 92, says:

Since the consent of both parties is required in the Book of God, and since, before maturity (baluugh), their consent or lack of it cannot be ascertained, marriage is therefore conditional upon reaching the age of maturity (baluugh), and is not permissible before that time.

That’s the same ‘maturity’ (baluugh) that Baha’u’llah has already said is attained “in the 15th year.” Does the Guardian apply the same reading?

No, he says (in the words of his secretary)

In dealing with [African] people who are still backward in relation to our civilised standards,…you should be both tactful and forbearing. There is no specific minimum age mentioned in the Baha’i teachings at which girls may marry. In the future, this and other questions unspecified will be dealt with by the International House of Justice. In the meantime, we must not be too strict in enforcing our opinions on peoples still living in primitive social orders. (Unfolding Destiny 334)

There are two possibilities here. Perhaps this is the secretary’s idea, and that secretary just does not know that a minimum age for marriage is specified in the Questions and Answers to the Aqdas. That fits with the contrast in this letter between “our civilised standards” (Western standards presumably) and the primitive social orders of the Africans. It’s not the way Shoghi Effendi would speak, or think, to put it mildly. The way the letter is expressed certainly comes from the secretary. But before discarding the letter as obviously unauthentic, we should see whether there is any possible reading of the texts that would allow for the possibility that the core of this answer does come from Shoghi Effendi. His answers to questions put to him were often in the form of a few words scribbled in the margin of the letter, which his secretary would then elaborate on. Is it possible that Shoghi Effendi — knowing as he did that the minimum age for marriage is specified in the Aqdas as ‘maturity’, and that ‘maturity’ is specified as ‘in the 15th year’, could have noted on this letter something like “be tolerant, no specific minimum age in the writings”?

I think it is possible, because the first case was about religious duties (prayer and fasting) but this is about a restriction to our rights: “marriage is … not permissible before that time.”

So which principle applies to a restriction on rights: “”God wishes to make it light for you” or “build a fence around the Torah,” or something else? The Guardian leaves it to the Universal House of Justice to rule: he makes it a matter of legislation not of interpretation.

My second idea relates to the difference between ‘daily transactions’ and ‘acts of worship’ in Bahai religious law. These are the two main categories of religious law in Islam, and are also applicable in Bahai law. Baha’u’llah writes:

The affairs of the people are in charge of the men of the House of Justice of God … Administrative affairs are all in charge of the House of Justice, and devotional acts must be observed according as they are revealed in the Book. (Ishraqat, Ali Kuli Khan’s translation)

The merits of this translation are discussed in a posting on this blog, but for our purposes the point is that the UHJ is not allowed to rule on ‘devotional acts.’ The category of daily transactions is put under the control of the House of Justice in Abdu’l-Baha’s Will and Testament:

as the House of Justice hath power to enact laws that are not expressly recorded in the Book and bear upon daily transactions,

Does marriage fall in the category of ‘daily transactions’? It does in Islamic law, but it’s important to examine, rather than merely assume, whether a term used in Islamic law applies in the same way in Bahai law. In Christian theology marriage is defined as a sacrament, an act of worship. There’s a tablet of Abdu’l-Baha which talks about the wisdom of God leaving many social laws to be defined by the House of Justice. I’ve translated it on this blog as the ‘Tablet on religious law and the House of Justice.’ The example of laws that Abdu’l-Baha uses in this tablet is the law of the forbidden degrees of marriage, which he says the house of justice (the national or the Universal House of Justice) can decide in the light of scripture, social conditions, scientific evidence etc… Since Abdu’l-Baha also says in his Will that the House of Justice’s power extends over the ‘daily transactions’ category, it appears that marriage in Bahai law does fall under ‘daily transactions’ and not under ‘acts of worship.’

Since marriage in Bahai law is a daily transaction, not an act of worship, the minimum age for marriage is in a different legal category to the age at which prayer and fasting and other acts of worship become obligatory, even if the same word (baluugh) is used, in reference to the same question in the Questions and Answers, and even if (possibly) the same actual age (15th birthday) were in the future to be applied. So Shoghi Effendi’s deduction about fasting (that it is obligatory from the age of 15) does not necessarily constrain a house of justice’s decision about the minimum age of marriage. The House of Justice can choose to argue from analogy, and make the minimum age of marriage 15, but it could also say it is 14, and still be in line with the text of the Aqdas. And whatever it decides, it can also change. That’s why the Guardian’s secretary can write,

“There is no specific minimum age mentioned in the Baha’i teachings at which girls may marry. In the future, this and other questions unspecified will be dealt with by the International House of Justice.

The House of Justice can rule on the minimum age, not because it is unspecified, but because marriage falls in the sphere of the House of Justice, and because there are two different principles that can be applied to what is specified: to choose the lightest of the possible interpretations of the law, or to build a fence around the law.

So it’s true: the age of consent for Bahais is 14, 15, and not yet decided.

~~ Sen
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11 Responses to “Age of consent”

  1. robert van der hope said

    Hey !! That’s an easy one Sen. Baha’is have to obey the law of the land. If the law allows marriage at whatever age, that’s it. The Kitab-i Aqdas is then irrelevant.

  2. Sen said

    Not so, Robert. The law (in the Netherlands) allows me to smoke pot and drink alcohol, but Bahai religious law does not. It’s two different meanings of the word ‘law.’ Religious law is part of a path of spiritual discipline, to train the soul and shape the religious community, and as a marker of religious identity. It’s a discipline voluntarily undertaken. Civil law is in essence and intentionally, coercive, and serves to protect the community and enable collective action in areas where, without coercion, the freeloader problem would make effective action impossible. Like taxes.

    Naturally civil law prevails in the case of restrictions: Bahai religious law allows me to drive on left, since it doesn’t mention road rules at all, but Dutch law insists I drive on the right, and that prevails. So if Bahai law says you cannot have a Bahai marriage until you are 14 (or whatever else the UHJ may decide), and state law says 16, then (since the civil and Bahai marriages must be held on the same day), you can’t marry until you are 16. If the civil law says for example 9 for girls and 12 for boys, you still cannot have a Bahai marriage until you are 14.

    However what interests me is not so much the practical implications, as to puzzle out why Shoghi Effendi could be so definite about the age of maturity for fasting, yet leave the age of maturity for marriage to the Universal House of Justice to decide. The secretary was certainly having a bad day, to judge by the patronizing comments about Africans as compared to “our [Western] civilized standards,” but I think its possible that, behind that, we see Shoghi Effendi making a subtle distinction about spheres of law, and/or principles of legal interpretation. If two readings of a religious law are possible, should an assembly or House of Justice choose the lightest, or err on the side of caution and chose the most stringent?

  3. Baquia said

    Thank you Sen, this was most surprising and enlightening.

  4. xyz said

    Shoghi Effendi interprets the word “maturity” of Baha’u’llah concerning religious duties as 15 years. Shoghi Effendi interprets the word “maturity” of Baha’u’llah concerning marriage as undefined. In other words, the word “maturity” has different meaning in different context. In the case of marriage the age of maturity or the minimum age is left for the House to legislate on and it is not limited to between 14 and 15 years. Whatever the House legislates it can change with time. So if the House legislates “maturity” for marriage as 21 years, it can change that to 25 years and so on.

  5. Sen said

    I think you are right, that the House (national or international) could fix the minimum age for marriage at anything above 14. Consent of both parties is one pre-requisite for a valid marriage, and that cannot be given unless both parties have reached maturity, and that is stipulated as occurring in the 15th year for both men and women. The House of Justice can set another requirement as well – such as attaining the age of 18.

    Thank you for your suggested reading of two ages of maturity. I am not sure that we can find this in the Aqdas, or elsewhere. While the Question asked about the age of maturity for religious duties, Baha’u’llah’s Answer simply defined maturity/baluugh. Moreover, I have never encountered any system of Islamic law that has different ages of maturity for different matters (all the schools do have different ages for boys and girls). The same age applies for starting Fasting, agreeing to a marriage, making a contract, etcc.. Maturity here is a technical term, it does not imply that the person becomes an adult. Baluugh, has the connotation of being able to speak for oneself. Elsewhere in the Writings the imperative is translated “Proclaim!…” Related forms of the word are translated as “teach” “attain” “eloquent,” etc.

    It could be that the Guardian’s instructions to his secretary referred to the Question specifying “for religious duties” — so that, at least, we are sure of — but not specifically saying that the same age of maturity applies to “daily transactions.” So it is left to the House of Justice. The difficulty with that reading is, that the Guardian was authorised to interpret the text, the situation demands an interpretation (are there one or two ages of maturity?), and he leaves it to the House of Justice! That’s why I’m still inclined to prefer my solution: that what he felt was unspecified was what principle to apply: “God wishes to make it light for you, for man was created weak,” or another? The deduction of general rules from the scripture is one of the duties of the House of Justice.

    Either reading gets to the same result: the question is interesting when we are trying to understand Shoghi Effendi’s thinking, about his own role and the role of the Houses of Justice. In this case, we peer into Shoghi Effendi’s mind “through a glass darkly.” I cannot think of any argument to show that my reconstruction of his thinking, or yours, is more probable. Not only is his thinking not explained, I am trying to reconstruct it from a letter written by a secretary, whose ideas about backward Africans and “our civilised standards” are so far removed from the way Shoghi Effendi related to Africans, and what he wrote about the moral standards of Western Civilization in his day, that the possibility that the letter is not approved by the Guardian has to be taken seriously.

  6. xyz said

    “Consent of both parties is one pre-requisite for a valid marriage, and that cannot be given unless both parties have reached maturity, and that is stipulated as occurring in the 15th year for both men and women”

    Shoghi Effendi interprets “in the 15th year” as attaining the age of 15 wrt religious duties. For those who define “in the 15th year” as attaining the age of 14, the age of maturity wrt religious duties is the 16th year. The issue is how one interprets “in the 15th year”. The age of maturity wrt marriage is not “in the 15th year” as you say. It is a matter not expressly revealed in the teachings and is left for the Universal House of Justice to legislate on. Question 20 in Q&A section of the Aqdas specifically says “religious duties”. Marriage is not a “religious duty” as it is not obligatory on the believer.

  7. Sen said

    Marriage is not a religious duty, true – it falls under “daily transactions” in Islamic law. However a precondition for a valid contract is that the contractees should have reached maturity (not adulthood, just the ability to know and express their own minds). As I said before, I know of nothing to indicate the possibility of two or more different ages of maturity, for different areas of law, either in Islamic law or in the Bahai writings. However maturity is only one precondition for marriage, other preconditions can also specify an age, for example state law may add “16 for girls and 18 for boys” (for example), or the House of Justice may specify an age.

    My difficulty with the idea of two or more different ages of maturity, apart from the lack of a textual basis, is that it is incompatible with the concept of maturity/baluugh. Baluugh is a statement about someone’s condition, not a rule about when one may do things, or a shorthand for “15th birthday” (or 15th year). It’s about knowing one’s mind, being conscious of oneself. For example, idiots and lunatics are not necessarily baluugh in Islamic law: for such people their ability to know their minds has to be evaluated in each case. Such exceptions are not specified I think in Bahai law, but they are entailed in the meaning of the word.

    We can reason to much the same end, but without distorting the meaning of the word maturity/baluugh, if we say, Baha’u’llah has specified that maturity comes in the 15th year, that is, between the 14th and 15th birthday. Naturally it is different for each person, and in the case of those with mental problems or abnormally low capacities, maturity may come later, or the person may have periods or even a chronic condition in which they cannot be considered mature. However if we seek a general rule, we should, when considering religious duties, take the lightest possible interpretation of the text, as indicated in a letter written on behalf of Shoghi Effendi: ““The ordinance of fasting is, as is the case with these three prayers … a spiritual and vital obligation enjoined by Baha’u’llah upon every believer who has attained the age of fifteen.”

    Then we can add either: “maturity is one of the preconditions for marriage, the House of Justice (in each country?) can specify a higher minimum age for marriage”
    or: “the principle of taking the lightest possible interpretation of the text should be applied by assemblies in the case of religious duties; the Universal House of Justice may deduce a similar general interpretive principle for “daily transactions.” (Or both; either would explain why the secretary can say that the minimum age for marriage is not specified.)

    I think I should say again, that my purpose in raising the issue, is not to try to lay down the law for Bahais, but to understand Shoghi Effendi’s train of thought, and incidentally to get clarity on just what the Bahai scriptures say regarding the age of marriage for apologetic purposes, because some critics of the Bahai Faith today say that 14 or 15 is too young to marry (and I generally agree – but it is not too young to know one’s own mind).

  8. xyz said

    “92. QUESTION: In a treatise in Persian on various questions, the age of maturity hath been set at fifteen; is marriage likewise conditional upon the reaching of maturity, or is it permissible before that time?
    ANSWER: Since the consent of both parties is required in the Book of God, and since, before maturity, their consent or lack of it cannot be ascertained, marriage is therefore conditional upon reaching the age of maturity, and is not permissible before that time.”

    I just read Q 92 in the Q&A section of the Aqdas and there seems to be a contradiction between the above Q&A 92 and Shoghi Effendi’s letter that says “There is no specific minimum age mentioned in the Baha’i teachings at which girls may marry”

    Q 92 clearly specifies the age of maturity as 15 years and then asks if marriage is permissible before maturity. So the Aqdas does specify the minimum age of marriage as 15 years. I don’t understand how Shoghi Effendi could say the minimum age for marriage is not specified.

  9. Sen said

    Exactly. It is precisely this puzzle that led me to devote so much time to the question.

    There are at least two possible approaches:
    (1) we can conclude that the letter written on behalf of the Shoghi Effendi shows us the knowledge and understanding (and opinions of Africans, and Western superiority) of the secretary, not those of the Guardian, or,
    (2) the letter does represent Shoghi Effendi’s conclusion, and since he was working on a codification of the Aqdas at that time (probably 1943), he did of course know Q92 of the Aqdas, which specifies that the age of maturity applies also to marriage (maturity being one of the requirements), but there is some more complex train of thought that led him to this conclusion. My background in Islamic law and family law suggests to me that Shoghi Effendi would have had in mind the principle “God wishes to make it light for you” (for man was created weak), which is one of those things so basic to Islamic law that every first-year student can quote it. I might be wrong about that, but Shoghi Effendi does write that we:

    … must strive to obtain, from sources that are authoritative and unbiased, a sound knowledge of the history and tenets of Islam — the source and background of their Faith …. They must devote special attention to the investigation of those institutions and circumstances that are directly connected with the origin and birth of their Faith, with the station claimed by its Forerunner, and with the laws revealed by its Author. (The Advent of Divine Justice, p. 49)

    I think my reconstruction of a train of thought is at least strong enough to make the first choice, that the letter is simply not authentic, far from automatic. For me at least that’s a small step in understanding. When I started this research I was quite sure that that letter could not be what Shoghi Effendi intended to say on the topic.

  10. Dear Sen, what was the minimum age of marriage in the Bayán? Is Bahá’u’lláh the first who put a minimum age? Thanks.

  11. Sen said

    Peter Smith says the minimum age of marriage in the Bayan is eleven (The Babi and Bahai Religions p 34), but he gives no source. I have not been able to locate a source myself.

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