By Mustafa Akyol
NOVEMBER 1, 2018
The European Court of Human Rights in Strasbourg, France, made a controversial decision on Oct. 25 about an Austrian woman (publicly identified only as “E.S.”) who had publicly condemned Mohammed, the prophet of Islam, as a pedophile. For this, she was fined in 2011 by an Austrian court, which convicted her of violating a national law against “disparaging religion.” In return, she appealed to the European Court of Human Rights, arguing that her freedom of speech had been curtailed. No, not really, the ECHR responded, decreeing that her accusation against the Prophet Mohammed was wrong and offensive, and that she deserved to be fined for “stirring up prejudice and putting at risk religious peace.”
Judging by the media reaction, many Muslims seem to have welcomed the ECHR decision. And as a Muslim myself, one who deeply cares about the honor of the Prophet Mohammed, I think the substance of the court’s factual analysis was correct: I do agree that Mohammed was not a pedophile and that it’s wrong and offensive to depict him as such. Yet I also believe that this decision was no cause to celebrate. It neither helps Muslims nor our religion for those who believe otherwise to be silenced. Ultimately, Europe’s court interventions may serve to stoke Islamophobia, rather than promote integration.
Let’s begin with the scriptural details at issue in the Austrian woman’s case—namely, the marriage of the Prophet Mohammed with Aisha, the daughter of Abu-Bakr, who was the prophet’s closest companion and would become his first successor, or caliph. In the Islamic tradition, we read that this was a happy marriage, and when the prophet passed away in the year 632, he was in Aisha’s arms. In her later life, Aisha also became a powerful figure in early Islam, championing political causes and even leading armies.
The problem is that when she was married to the prophet, Aisha was allegedly scandalously young. This is recorded in Sahih Bukhari, the most authoritative collection of hadiths, or reported words and deeds of the prophet. “The Prophet engaged me when I was a girl of 6 (years),” Aisha reportedly said, adding that the marriage was consummated three years later. “Unexpectedly Allah’s Apostle came to me in the forenoon and my mother handed me over to him, and at that time I was a girl of 9 years of age.”
This, of course, is a shocking thing to read today—and has been the basis of accusations of pedophilia thrown at the Prophet Mohammed, by E.S. in Austria and some other anti-Islam activists. In return, however, there are two important points to be made.
The first is that that we do not have to accept that Aisha was really 9 years old when her marriage was consummated. Yes, it is written that way in Sahih Bukhari, but this was a collection of oral narratives compiled some two centuries after the fact. While it has been considered as sacrosanct by most Sunni traditionalists, it has faced many criticisms and doubts, by modern Muslims on a plenty of issues. In particular, its story of the marriage age of Aisha has been disputed by a wide range of contemporary Muslim commentators. Either by calculations based on the age of Aisha’s sister, the timeline of other relevant events, or the Quranic references to the marriage age, they infer that Aisha must have been much older.
The second point is that all these Muslim second thoughts about the age of Aisha appeared in the modern age, because this issue was never previously an object of critique. The reason is that the minimum marriage age the West has in mind today, which is typically 18, is a modern achievement. Throughout much of human history, however, puberty was seen as the legitimate age for marriage. People lived much shorter lives, children had no formal education to finish, and what we abhor as “child marriage” today was simply normal.
The ECHR decision was right to point to this gap in historical context. “Child marriages were not the same as paedophilia,” the court explained, adding “[they] were not only a phenomenon of Islam, but also used to be widespread among the European ruling dynasties.” In fact, there are records of extremely young brides even in the American colonies—in Virginia, in 1689, a 9-year-old Mary Hathaway married to a man named William Williams.
So historical context matters, and the prophet Mohammed was ultimately a mortal human being who lived in the context of his own time. (He was not an “object of religious veneration,” as the ECHR decision mistakenly described him, but a mere messenger of God.) Judging him according to our modern standards would be unfair, as it would be to the Old Testament patriarchs and prophets who had polygamous marriages, even concubines.
Such are the arguments I, as a Muslim, would raise against the Austrian E.S. and others who would defame my prophet. But would I also want them to be silenced by courts?
The answer is “no” for several reasons. First, such a ban will not nurture any real respect for the Prophet Mohammed. Those who see him in a negative light will keep doing so—and probably only more so. There is a widespread feeling in the right-wing circles of the West that political correctness, enforced by establishment institutions, hides ugly truths about Islam—and they will see this as a case in point. As a result of this case, we may soon see more overt and extreme enmity against Islam, and more slurs thrown at the prophet—including pedophile.
Second, such accusations against Islam have become common in the West for a burning reason: There are quite a few Muslim men in the world today who take little girls as brides and justify such terrible “marriages” by referring to the very case of Aisha. (Because just like the crude critics of Islam, they, too, have no sense of historical context.) This is a serious malaise within the Muslim world that we Muslims need to eradicate. We will best fight Islamophobic narratives by cleaning the dirt in our house, in other words, rather than silencing those who complain about the dirt, even if they are impolite or even hostile.
Finally, how much legal intrusion do we really want in society? Many conservative Muslims welcomed the ECHR decision and may hail more limitations on “the enemies of Islam,” but they should see that this is a double-edged sword. The same ECHR, with the same legal philosophy of over-managing public life, also made decisions restricting Muslim practices, such as Muslim women’s dress codes. One of these was on a 2001 case of a Swiss primary school teacher who was banned from wearing a headscarf—not a face veil, just a headscarf—in school. The ECHR ruled that the headscarf could have a “proselytizing effect,” and therefore it would not go well with “tolerance, respect for others.” It applied the same rationale, in other words, that justified the fining of the Austrian E.S.
None of this is to disparage the ECHR, which I believe still acts as a beacon of human rights in most cases. Its jurisdiction extends to the 47 members of the Council of Europe (a broader organization than the European Union), and it helps prevent or punish severe human rights violations in draconian states such as Russia and Turkey. In the latter, the ECHR is often the last hope for innocent people who go to jail merely for their ideas.
Yet there are ways of protecting liberty preferable to those of ECHR: the American way, where the First Amendment gives citizens the right to say whatever they want to say, wear whatever “proselytizing” symbol they want to wear, and be as religious, or anti-religious, as they can be, unless they incite violence. That, I believe, is a better approach for all, including Muslims. It would allow Muslims to be as pious as they want while hearing what others really think of their religion. That would give them a better chance both to live their faith and to articulate it in a diverse, critical, and sometimes not-so-friendly world.
Mustafa Akyol is a senior fellow at the Cato Institute, where he focuses on the intersection of public policy, Islam, and modernity.