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.
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.
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.
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This entry was posted on May 18, 2011 at 17:08 and is filed under Aqdas and Law. Tagged: Age of consent, Bahai Faith, bahai theology, Marriage, Shoghi Effendi, بهائی, بهائیت. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.