Reinterpreting the Guardian's Role in the Islamic Contract of Marriage: The Case of the Maliki School

Electronic copy available at: http://ssrn.com/abstract=1221202

THE JOURNAL OF

ISLAMIC LAWAddressing Issues ofLaw, Religion and Culture

\

Volume 3 • Number I • Spring/Summer 1998

CONTENTS

Articles

Reinterpreting the Guardian's Rolein the Islamic Contract of Marriage:The Case of the Malikl School

by Mohammad Fadel 1

AJ-Mu'allaqa: The Muslim WomanBetween Divorce and Real Marriage

by Abdul Hakim Quick 27

The Myth of Misogyny: A Reanalysis of Women'sInheritance In Islamic Law

by Zainab Chaudhry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41

Research Tools

Selected List of U.S.-basedWriters, Lecturers & Consultants on Islam 99

List of Muslim Women Organizationsof North America 104

Electronic copy available at: http://ssrn.com/abstract=1221202

Reinterpreting the Guardian's Role in the

Islamic Contract of Marriage:

The Case of the Maliki School

Mohammad Fader

CONTENTS

I. INTRODUCTION ....................•................. I

II. BACKGROUND ........................•............. 5

III. THE WAI.I AS AGENT OFTHE WOMAN/COMMUNITY 12

IV. CONCL\I~ION 2]

A'fllN01X:MMI!l. MARRIAGE CONTRACT ................•..••...... 24

I. INTRon'ICTION

It is not unusual to hear said in the popular media that Islamic lawd'./ldvantages women. Indeed, the behavior of many Muslimsoclenes, and their interpretations of Islamic law, seem to provideclear support to this popular perception.' I do not wish to counter thispopular perception in this brief essay. Rather, my goal is merely to

• Unlvmlty ofChieago. Ph.D.. 1995;University of Virginia, J.D., 1999(expected)

I Themlm stllrk examples.of course, is the Taliban's so-called Islamicregime inAfghanistan. Unfortunately, I do not believethe record of Saudia Arabia in thisrtlt.rd is much better.

2 The Journal of Islamic Law [Vol 3:1

take a critical look at a doctrine that is often cited - by Muslims andnon-Muslims alike - as indicative of Islamic law's systematicgender discrimination: the legal requirement that a Muslim woman,prior to her marriage, must gain the permission of her father, oranother male relative. This is in contrast to a Muslim male, who, itis said, may marry without the permission of his father, or any otherrelative.

A proper understanding of this legal requirement is critical formodem Muslims in the United States, given the centrality of notionsof personal autonomy and gender equality in modem American life- notions that Muslims in the United States generally accept asnormative, and believe are compatible with Islam, at least at anabstract level.

The challenge is whether we can reconcile our modem notions ofindividual autonomy and gender equality with a body of legaldoctrines - as well as boisterous claims by obscurantist Muslims that apparently fly in the face of these concepts. In particular, thepopular understanding that Islamic law requires a woman to garnerher father's approval to marry, or the approval of another malerelative, smacks of patriarchy - a vestige ofa system in which maleshad quasi-property interests in the female members of the family. Infact, medieval Islamic law' poses many conundrums of the sort raisedby the apparently differential treatment of men and women vis-a-visthe requirement of the guardian prior to marriage. It is simplybecause most of us will marry that we become aware of the rulesregarding the guardian in marraige, and its seemingly discriminatorynature. When the problem is so acute, self-serving repetition ofslogans about the dignity of women in Islam are not sufficient toanswer the troubling question of whether Islamic law awards malesa property interest' in their female relatives.

2 When I use the term "medieval Islamic law," I am referring to the post-formativeperiod of Islamic law, when the schools oflaw had become firmly established andeach had produced an authoritative body oflegal doctrine and legal texts, roughlyfrom the 13'h century to the 18'h century of the Christian Era.

J This alleged property right, however, is only partial -- it is limited to the powerto exclude. It would not include other incidents of property, e.g., the right toalienate, the right to enjoy, etc. As I will argue, the nature of the guardian's

Spring/Summer 1998] Guardian's Role in Marriage Contract 3

This essay will not attempt a detailed analysis of all the rulesregarding the role of the guardian in the marriage contract. That initself would require a monograph. Instead, I attempt to provide abroad overview ofthe competing interpretations that have been givento the guardian's role in one school ofIslamic law, the MaIild school.The Malik! school is named after Malik b. Anas, the great legist ofMedina who died in the second century of the Hijra. It subsequentlyCAme to predominate in Northern, Western and sub-Saharan Africa.My choice of the Maliki school is merely one of convenience, sincethat is the body of fiqh which I have studied in most detail. It ispossible that other schools of jurisprudence offer entirely differentreadings of the guardian's role.

Based on a close reading of Malik! doctrines" on the guardian, Ihave reached the following conclusions. The first and most importantconclusion is a negative one - while Muslims might have good faithdisputes regarding the positive role that a guardian is to play in amarriage, there is no basis to the belief that Islamic law requires amale guardian because the guardian has a private interest in themarriage of his female relative that Islamic law protects by stipulatingIhe guardian's assent to the contract. In other words, there is no basis10 conclude that Islamic law, at least as interpreted by the Malikis,subordinates female autonomy to the private interests of her malerelatives, Therefore, Islamic law categorically rejects the notion thatmen have a property interest in their female relatives.

The second conclusion is more in the nature of an observation:Miilikidoctrine is characterized by a deep split regarding the role ofIhe public authority in the marriage contract.' Although prevailing

rehllionship to the woman cannot be analogized to a form of private property.

• The Maliki school, like other schools ofjurisprudence, was characterized by aareal deal of internal dispute regarding what the "right" rule for a given issuechould be. Nonetheless, the school did have a dominate opinion whose technicallabel was the mashhiir, i.e., the "famous" opinion. An things being equal, whichoften was not the case, courts are supposed to apply the mashhiir opinion.

• Muslim jurists would generally refer to the public authority, interchangeably, asthe "ImAm,"or the "sultan," or the "hakim." Thus, when jurists say something like"It is a matter for the Imam," it should not be taken Iiterally. In other words, theyare ~aying it is merely a question for the public authority, not Iiterally that the

4 The .Journal ofIslamic Law [Vol 3:1

Malik! doctrine sought to involve the public in the contract wheneverpossible. later Malikis, especially in Egypt. sought to minimize therole of public authorities in the supervision of marriages, preferringto keep marriage entirely within the private sphere of the naturalfamily.

Third, as a matter of legal doctrine, the importance of theguardian's role is exclusively a function of the majority, or lackthereof, of the ward, not the gender of the ward. Thus, the guardianofa minor. assuming he is the biological father, has almost absolutepowers to compel the marriage of both his minor sons and daughters.At the other extreme, the biological father has no power to compel themarriage of either his adult son or daughter. The problem for Muslimwomen. however, was that the Malik! school establisheddiscriminatory standards of emancipation (tarshid), namely, thatwhile a male was presumptively emancipated from his father'scontrol upon reaching the age of majority, a woman had to prove thatshe was capable of managing her own affairs to win emancipation.Otherwise. she remained subject to her father's control as though shewere a minor until her first marriage:

Fourth. where the woman has been emancipated. although the lawstipulates the permission of a guardian, in fact, the woman is free toignore the wishes ofber male relatives and instead ask for permissionto marry from the public authority. This suggests, based on thegeneral structure of Islamic constitutional law, that the authority

person with the title of"'mam" isempowered to resolve it. It should be noted thatuse of the term "qadi" or judge also qualifiesas a generic representative of thepublic authority because the judge is a creatureof the public.

• I argue, however, that even assumingthe Malikis' distinctionbetween males andfemales in regardto emancipation was legallyjustified.theircontinuedtreatmentof an adult female incapable of managingher own affairs as a minor was an errorbecause in this case the cause of her legal incapacity is no longer minority, butrather the legal cause of her alleged incompetence is managing ber property. Afather did not have power to compel the marriageof an adult male whose legalincompetence was a consequence of his inability to manage his own financialaffairs. Therefore, the proper treatmentof an adult.unemancipated woman shouldhave been the same as a male who was incapableof managinghis own financialaffairs, i.e., while the father hasthepowerto vetosuchan incompetent's marriage,he does not have tbe power to compelher to marrycontrary to her will.

~rrinlo!/Sllmmer 1998) Guardian's Role in Marriage Contract 5

exercised hy a guardian. understood as the closest male relative of thefemale. in the marriage of an adult woman. is not by virtue of avested private right. but rather as a delegation from the publicnnthority. In other words. Islamic law created. as a default rule. thatAmale relative ofthe bride would act as the public's representative ineach marriage. Because the guardian is acting pursuant to adelegation of power. it is within the prerogative of the publicauthority to change the default entitlement. withdraw it from thefamily of the bride. and exercise it directly through the public'sAgents. Were this suggestion to be followed. and if the public'sagents routinely served as guardians of marriages. rather thanexceptionally as is presently the case. the perception that Islam'srequirement of a guardian is rooted in gender discrimination wouldhe replaced with the more accurate. and to modems at least, the moreappealing notion that Islam requires a guardian to insure that thepublic's interest in the marriage is being protected.

II, OACKGROUND

Miiliki works of positive law (fury.) such as AI-Sbar~ al-~l!gbir

do not discuss why a guardian is required in all marriage contracts butrather take the requirement for granted." These works proceed bydividing guardians into two types. those that have the power tocompel the marriage of their wards, and those that do not.' Ingeneral, the Miilikis award a father the power to compel the firstmarriage of his daughter." A father also retains the power to compel

• Cf. Ibn Rushd tbe Grandson, 2 Billhul-mujlabid wa nihiyat al-m~jd7-9(Bierut; Dir al·fi1<r, n.d.) (arguing Ihal the sc:ripluTll basis for the stipulalion of aguardian in Ihe marriage conll'lcl for a mature wornan is conjectuTlI at best).

• The power 10compellhe ward 10 marry is called jabr. A guardian possessed ofsuch power is called a mujbir. The ward, depending on whether he is a male or afemale, is called mujbar and mujbara, respectively.

'In other words, Ihe falher has Ihe righllo compel his virgin daughter's marriage.However. virginity is a term of art, meaning never having been married, notphysical virginity. Thus, al-Dardir stales in colorful language thlllS far IS Ihelawis concerned, a girl who hIS never been married, bUI nonetheless hIS repealedlyengaged in unlawful sexual intercourse such thaI the "cloak ofmodesly hIS left her

The .Inurnal nf Islamic Law [Vol 3:1Il

the marriage of his previously married (thayyib) minor daughter whobecame a widow prior to puberty.'? Finally. the father enjoys thepower to compel the marriage of a daughter who suffers from apermanent state of mental disability." The only limitation on thefather's right to exercise this power is that the daughter suffers nolegally cognizable harm from the marriage."

In the absence of the father. the general rule is that no successorguardian hy relation. e.g., brother. paternal uncle, etc., possesses thepower to compel marriage." The deceased father, however, canchoose to convey this power to his daughter's designated guardian(was /) by testament. In the absence of an express grant of thisauthority. however, the father's testatory successor in guardianshipdoes not enjoy the power to compel marriage." It would seem that

face," is nevertheless 3 virgin for purposesof this rule.

11'\ 1"the pre-modem era.marriage of minors was a common practice, althoughconsummation W3!; not to occuruntil theonsetof puberty. Thisrule simply statesthat a minor girlwho ismarried but whose marriage isneverlegally consummated.retains the legal status of a virginforthequestionof the father's power to compelher subsequent marriage.

11 In other words. a father could not compel the marriage of his schizophrenicdaughter. assuming she suffered only periodic attacks of schizophrenia. on groundsof her insanity. Of course. he could still compel her marriage on either of the twopreviously mentioned grounds.

u Abii al-Barakat Ahmad b. Dardir,2 AI-Shari) al-~~ 355 ("wa mahalljabr 01ah fI al-thatatha idh 10myalzom 'alii tazwTjiha darar 'ado . . . mimmayuroddual-zawj bih: sharon" = "The father enjoys the power 10 compel in lire three{mentioned cases] so long 0.' no harm. by which lire husband would beconsideredlegally unfit. results 10herfrom the (compelled] marriage"). [Edila,'s note: Theessence of the principles from the Arabic language authorities upon which theauthor of this article relied are treated within the body of the text. Transliteratedquotations of those principles. accompanied by English translations, are set out inthe footnote, of the article. as demonstrated here.]

.. ld., p. 356 ("thumma bdda . . al-ab wa wasiyyihiII al-bikr wo al-sagh7'0 woal-ma}"iina Iiijabra li-ahad mtn al-awliyD:lCo{Q unthO ~aghTra aw lab 7'0." ="Other thon the[other, and the guardian by teslamentary de.,lgnotiOrJ. wilh respectto a virgin. on orphan. or menIally disabled female. no gua,dian has lire power 10compel the marriage ofa female. be she on adull or a minor ").

" Id, p. 355 C'fa-wosiyyuhu . . . in'oyyono lahu . . . al-zawja . . . awamarahu ..bih! [al-jahr1 ow bl-I-nilcQh." = "Then the guardian by testamentary

SI',lnllfSlIl11mel 1'l9RJ Guardian's Role in Marriage Contract 7

",hrll' the father dies or disappears. and he fails to appoint a guardianfnl his minor daugher, or fails to convey to that guardian the powerIn compel her marriage, the orphaned daughter could not marry priorIn leaching the age of majority and then only with her consent." Infnct. however. the power to compel her marriage upon the father'sdemise. according to the Malikis. devolves to the state. Thus, a judgecan permit her guardian by relation to contract her marriage if theorphan daughter has reached marriageable age. and there is evidencethat failure to marry will lead to either her moral corruption oreconomic ruin."

Putting these rules together, what emerges is a private power inthe father to compel his minor daughter's marriage that does not passby inheritance. although it can beconveyed by designation (wasiy'ya).In the absence of the father, and his designated successor (was!), theprivate power to compel marriage disappears. In its place the publicassumes this power through its agent. the state, which usuallydelegates this power to the judge. Finally. in the absence of the state,this power devolves to the community of Muslims. 11

designation ... if the father designated for him the husband. . . . or [the father]commanded him to compel [her marriage) . . . or marriage. ").

" Id. !'P. 356-57 ("wa idhii lam yakun li-ahad minlrumjabr fa.innamii tuzawwajhaigh . . . bi-idhnihii wa riaahii sawa' kanat al.biiligh bikran ow thayyiban." ~"Since none ofthem can compel [the marriage]. she may only be married as anadult .., with her permission and consent. whether she has Or has not beenpreviously married ").

"Id. p. 357 ("illii ... yotlma ... kh7fa 'alayhii immii li-fasiidihiiji al-d7n . . . waimmii li-dayii 'ihii [I al-duayii li-faqrihii waqillat al.irrfiiq'alayhii ow li·khawfdayi1 malina." s "vnless ... .rheis on orphan ... whose moral corruption is'eared . . . or tlrat she will sllffer economic ruin due to her poverty and lack of'resollrces or fear that her property will be dissipated "),

" Al'madb. Muhammad al·Siw!. 2 Blllgiratal·saik ilii oqrab af·masaik 358 ("fai"..lamiiijad qQtinyushiiwar li·'adamihi ow li·A:ownihiziiliman kajQ jamirat olmuslimIn." ~ "If there is nojudge to be consulted. due either to his actual absenceor because he is IInjust, the cammllnity ofMuslims is sufficient. "). Interestingly.the EgyptianMiilikis of the lateOttomanperiod, m>m whichbothal·OarOlT andalSiw; hailed. rejectedthis rule, and stated that the maleguardianby relation couldcompel the marriage of his orphan ward withOllIthe permission of the publicauthorities. SO longas the guardianhad evidence that failure to marry would harm

The Journal ofIslamic Law [Vol 3:11

1

It wou ld be easy for a casual observer to assume that the powerto compel the marriage of a minor girl is simply a function of apatriarchical system of family relations characterized by thesubordination of females to males. Such a conclusion, however,would be hasty, since Miiliki doctrineexplicitly provided that a fatherenjoyed the same power over his minor sons. In the father's absence,this power could be exercised either by the minor's designatedguardian (wasT). or the state through the judge." In an importantrespect, however, the law was less protective of a male's autonomythan a female's -- whereas the designated guardian (wasT) could onlycompel a female's marriage if the father had expressly conveyed that

hereither morally or materially. Thus, al-Dardir states that ifherguardian compelshertomarry failure toconsult thejudge will not render the marriage invalid solongas the other legaIrequirements have been met. However.he does statethat it is"better" to consult the judge to insure the validity of the marriage ("ntramtustahsan al·mu.<lrawara Ii·thubiil al.wOjihOt wa rat al·muniiztriil" ~ "yes.consultation (of thejudge) is preferable in order toascertain (Ihefulfillment) of

le~alobligatio.... and resolving disputes."). Al-Dardir, 358. AI·saw; goes furtheringranting thesuccessor guardian thesame powers ofthefather byremoving therequirement thatshe at leastreachmarriageable age. concludingthatthe guardiancancompel themarriage ofhisminor female ward whenever hefears forhermoralor material welfare ("qawluhu [al-Dardir] "ow lam lablugh 'ashran" ziihiruhuannaha idha lam tobtugh "ashran wa zuwwljat md' khawfal-fasiidyufsakh qablal·dukhiil wa al·liil wa lay..a ka-<1hiilika bal huwa sah Th ibliean ... illii idhii

zuwwijat min ghayri khawfifasad." ~ "As far his [al-Dordir] saying 'or she has

not reached len. ' il would appear that if she has nOI reached len, and she wasmarried off due to fear of ruin. it would be invalidated, unless she dwell for alengthy period with him (with her husband), bUI Ihat is not the case; rather themarriage is valid at the time of can/racting ... unless she was married (for a

reason] other than fear ofruin. "), AI-saw;. 358. Theprobable explanation fortheirrejection of the Malik; school's basic distinction between thepowers of aguardian whoisa father andallother private guardians is therelative decline inprestige of theEgyptian state inthelate18th andearly 19th centuries.

"2 Al-Dardir 396 ("wajabara ob wawasT wa hiikim Iii ghayruhum dhakaran ... saghTran Ii-mas/aha." ~ "A falher, a guardian by testamentary designation. anda judge •• no nne else >- can compel the marriage of a male orphan for hisbenefit. ").

llrrinlllSummer 1998] Guardian's Role in Marriage Contract 9

rower to him. supra, the designated guardian's power to compel anorrhlln hoy's marriage was part of his default powers."

The most important difference between male and female childrenwith respect to freedom to marry was a consequence of the rules ofemancipation. Whereas a male child was automatically emancipatedfrom his father's jurisdiction upon reaching biological and socialmaturity, a female wasnot emancipated from her father's jurisdictionuntil two additional requirements were satisfied - entry into hermarital home and the testimony of reliable witnesses that she couldsuccessfully manage her property." Alternatively, a female could beemancipated ifher father. or her guardian as designated by her father.declared her to be mature in front ofa court." In both cases. a femalecould only become emancipated after the intervention of legalprocess.

'" 2 AI-Siw' 396 ("/i·I-wasTjabr al-dhalear li-l-maslaha wa law lam yaku" lahu

iahr al-u"tha leama idha qala (al-ahllahu: anta wasiyyi 'ala waladT." = 'Theguardian by te..flamenarydesignatio« can compel the marriage ofa male for hishenefit. eve"though he [the guardia" hy testame"tary designation] does not have(,he power] to compel [the marriage] ofafemale, as is the case.far example, whe"the father tells him, 'You are my desig"ated successor over my children. '"). Itshould be noted. however. that the jurists' tone in discussing the exercise of thispower is substantiallydifferent in the case of a male than a female: A guardiancompelsthe marriage of his malewardto gainan advantage for his ward. whereastheguardiancompelsthe marriageof his femaleward out of fear for her moral ormaterial well-being. 3 AI.Hatlib. MawQhihal.,jam 458 ("I a khi/iiffljawiiz i"leanih"ihi al.saghTr . . . idhii kana flh al·ghihta wa al-raghha lo-nilonihi mtn 01·ma"a al-mlisara." = "There is "" dispute regardi"g the permissihility ofcompelling ,he marriage ofa minor hoy ... so long as it [the marriage] is desirableand advantageous, as is the case, for example, in his marriage to a wealthy

woma". I ... 3 AI·Danru382·83 ("wa al-sob] mahjiir 'atayhi. .. /i.buliighihi rashTdan . . .wa zTdo . . . fT al.unthii duthiil zawj hihii. " wa shahiidat al-'udUJ bi-hjftihiimalaho." = "A minor male is legally incapocitat~ until he auains puberty, in asound state ofmind . . . It is also required In the case ofa woman that she enter hermarital home ... and the testimony ofupright wime.ues that she can maltOge herproperty. "),

n 5 AI-Hatlib 69 ("wa /i.I-ah tarshTduhii qabla dukhii/ihii . . . ka-I·WQST." = "nrefather, ltke the guardian by designatio", may emancipate her prior to her takingup residence i" her marital home. ").

10 The .Iournal of Islamic Law [Vol 3:1

This di fferent treatment of males and females by the law ofemancipation was justified - at least in the sight oflater Malikis hya factual stereotype of women as profligate." In effect, then, thelaw of emancipation presumed - subject to rebuttal in court - thata biologically mature woman was unable to manage her financialaffairs independently. Thus, although a physically and sociallymature male could not he subject to the guardianship of a third personunless his inability to manage his own affairs was proven in court,women had to demonstrate their social maturity prior to enjoyingtheir legal rights as autonomous individuals.

Analytically. then. a female's legal incapacity can be divided intotwo stages; First, she is legally incapacitated because of youth;second. upon reaching physical maturity, she is treated as legallyincapacitated because of presumed inability to manage her property(safah)." While identifying the precise ground upon which thefemale's incapacity rested seems irrelevant, it is in fact critical indetermining the limits of the guardian's power over his ward. While,as we have seen above. the father and his designated guardianenjoyed the power to compel the marriage ofminors, that power doesnot seem to be afforded to the guardian of a ward who suffers fromlegal incapacity arising from an inability to manage propertyreasonably (safah). While I have not found an explicit rule statingthat the guardian of a profligate male lacks the power to compel hismarriage, that is impliedly the rule provided by al-Dardir, who statesthat the only free males whose marriages can be compelled are thoseof the insane and minors."

Instead. the male profligate (al-safih) enjoys a right to marry thatis contingent on the approval of his guardian. Thus, a guardian, upon

" :I AI·D"rdir J8J ("wo innoma iht/jo li-I-/shhi1dli-anna sh'ana ol-nisa' al-isrO/(o-m"dar al-rvshd 'il'ldona 'ala sown aI-mal faqat." ~ "Tire reason testimonyIf'rinr 10 her emancipation] is needed isbecause women are generally profligate,and for II.'. [social] mntllrity is so/ely a question of (the ability] to preservef'roperl)'. "),

" Id p. 381 (the five grounds for the legal incapacity are bankruptcy. insanity.youth, profligacy (tahdh/r), and slavery).

" Id pp. 395·96 (mentioning that only the father, his designated successor. and thejudge may compel the marriage of the insane and minor males).

!ll'ring/Sllmmer 1998] Guardian's Role in Marriage Contract II

lenrning that his profligate ward has married, is given the option ofannuling the marriage or leaving it be. 25 Indeed, if the profligate wasfound to have reformed in the time between he contracted hismarriage and the moment his guardian discovered it, the guardian isdeprived of all authority over the marriage." This is in sharp contrastI(l the marriage of a female subject to a guardian's power to compelher marriage - the marriage contract is considered invalid from itsorigin, and therefore, whenever this defect is discovered, it is subject10 mandatory annulment under all circumstances."

Thus. the argument presented here is that there is a fundamentalmistake of law in the Miiliki treatment of a guardian's powers over alema Ie ward who has attained physical maturity: Since the proferredreason for her continued legal incapacity is an inability to manage heraffairs independently, she is a profligate (sa/fha), and thereforeshould no longer be subject to the guardian's power to compel hermarriage. Thus, even within the strict parameters of the MiilikIschool, a physically mature woman's marriage cannot be compelled.The fact that Miilikis allowed such a woman to be married against herwill, insofar as they considered her to lack complete legal capacity,can only be described as a major error in legal reasoning."

'< Id p. 394 ("wa ii-walT sa{fh tazawwaja bi-ghayr! idhn wallyyihi radd nikiihihi... in lam yarshud," = "the guardian ofa profligate male. who has marriedwithout lhe permission ofhis guardian. may void the marriage . . . so long as (theprofligate male] does not anain (social] maturity . .. )

ze Id. ("fa-in rashada fa-Ia kDlama Ii-wallyyihi." = "But. if he attains socialmaturity. then the guardian has no standing (to void the marriage). "].

" Id. pp. 363-64 ("wa sahha ai-niMh bi-ab'ad ... mcf wujiidaqrab fii yujbir ...wa ilia bi-an Goa ai-wafT mujbiron . . . ft1-1ayasi/.rIJ . . . ,..,fuslkho abodan." = "Amarriage is valid when contracted bya distant (gwrdian] . . . although a moreclosely related guardian -. present. so long as he did nOl hove the power tocompel (marriage]. Otherwise, where the close guordian has the power to compel,the marriage is invalid and it is null (no malter how long the couple livestogether). ").

11 Insome sense. it is charitable to describe thisas a "mistake" andnotattribute itto some other, less benign. explanations.

12 The .Journal of Islamic Law [Vol 3:1

TIl. THE WALT AS AGENT OFTHE WOMAN/COMMUNITY

In the absence of a guardian possessing the power to compel themarriage of his ward, a female can only be married with herconsent." Despite an adult woman's apparent freedom to rejectmarriage, Maliki law nevertheless conditioned the validity of hermarriage upon the approval of her guardian. In trying to understandthe possible functions of such a rule, as a preliminary matter twoquestions need to be answered. The first is who exercises jurisdictionover her power to marry; the second is what is the function of thisguardian under a regime that avowedly denies the guardian any rightsto compel his female ward to accept any proposed marriage?

Interestingly, the Malikis did not assign the father priority in thisrespect; rather, the woman's son was the law's first choice to be herguardian in such a case. Her grandson was its second choice, and herfather was its third choice." Of course, in many cases, perhaps evenmost, the father would be the first choice to serve as her guardianbecause she would have no children of her own. Nonetheless, thepriority given to the son is significant insofar as it signifies that therole of guardian in the marriage contract cannot be explained simplyas a means for the patriarchical family to control its female members.More importantly. the role of the guardian in validating the marriageof an adult woman is greatly diluted when compared to his role in themarriage of a minor. Thus, although the law may specifiy a specificmale relative as her guardian, she is in fact free to have any of hermale relatives serve as her guardian in the marriage, even though theproper guardian is present and opposes the marriage, in which casethe marriage would be valid so long as she consented," Indeed, the

1'l ld. p. 356.

JO Id. p. 359-360.

J1 ld. (wa sahha al-nikiih bi-ab-ada min al-awliyti' ka-samm wa ibnihi mcf wujudaqraba fa yujbir ka-ab wa ibnft sharTfa wa ghayrihiifa-fO yufsakh hi-ha I" ="The marriage is valid with a distant guardian, e.g., a paternal uncle and his son,even though a closer, non-compelling guardian, e.g.. a father and son, is present;so (such a marriage] is not to be annulled under al'1)' circumstances. '1pp, 363-64;see also. 3 Al-Mawwaq 432 (providing citations to ancient Miiliki sources whorecognizethe validityof such a maniage contractso long as the woman consents).


woman need not use a male relative as her guardian - she is free toask the judge to serve as her guardian even though her male relativesare present and object to the marriage." The fact that an adult womanhas the right to use any male relative as her guardian, or even thejudge when she is unable to find a cooperative male relative, impliesthat she is entitled to marry the groom of her choice, and indeed, it isthe rule of the Maliki school that the guardian of an adult woman isduty bound to marry her to any free, male Muslim whom she wishesto marry." The fact that an adult woman need not obtain thepermission of her actual guardian to marry makes her right to sue herguardian to compel performance of his legal duties almostsuperfluous." In conclusion, then, an adult woman's right to marry

32 2 AI-saw! 363 ("wa law kana al-abiad al-hakim mat wujud akhass ol-owuyd'

fa-idha lam tarda al-mar'a bi-fJudiir abad min aqa ribiha wa zawwajaha al-lJakimkiina al-nikiilJ sahThan"="lfthe more distant [guardian] is the ruler. and theclosest [natural] guardian is also present, but the woman does not consent to thepresence ofanyone ofher relatives. and the ruler marries her off, the marriage isvalid "); 3 AI-Halliib 432 ("al-nikiih yasifi1idha 'oqadahu al-abiad mat wujud alaqrab idha lam yakun mujbiran wa law kGna al-abiad huwa al-hakim" = "Themarriage is valid when the more distant guardian contracts it despite the nearerguardian's presence, so long as the near cannot compel marriage, even if the moredistant guardian [approving the marriage] is the ruler. "), According to al-Sawithe requirement of a guardian. at least in the order of priority recognized in theMiiliki school. is either supererogatory (nadb). or obligatory (w0ib). but not a

condition forthe validity of the marriage. 2 AI-Saw! 363.

II 2 Al-Dardi r 375 ("wa calaal-wall wujUban al-ifiiba li-kuf" radiyat bihi al-zawjaal-ghayr al-mujbara" = "When the woman cannot be compelled to marry. theguardian is legally obliged to consent to a groom whom she desires, so long as thegroom is her peer. "): 3 Al-Mawwaq 439 ("wa kufuhiiawla;ji/iO[al-mudawwana]idha radiyat thayyib bi-kuf" ft dlnihi wa huwa armahiijT al-nasab wa raddahu abaw wal] zawwajahii minhu at-imam" = "It is better ffor her to marry] the peer ofher [choice]; in it [the Mudawwana] 'when a previously married woman desires[to marry a man] who is her equal in religion, but beneath her in ancestry. so thefather or [another] guardian rejects him [on that account] the Imam can contractthe marriage between the man and the woman. '").

l4 The rule of the Miiliki school is that when a guardian of an aduIt woman refusesto marry her to a husband whom she wishes to marry. she has the right to initiatea complaint in court. and upon a judicial finding that the husband is a free. maleMuslim (kuf).. the guardian is declared to be cOdI. an active participle derived from

14 The Journal of IslamicLaw [Vol 3:1

whom she wishes, even if her wish contradicts that of her legalguardian, was protected by two rules: the first allowed her to use anyof her male relatives or the judge as her guardian, and the secondallowed her to sue her own guardian for what amounts to a remedy ofspecific performance of his duties as guardian.

The fact that legal doctrine creates two mechanisms whereby anadult woman can circumvent the opposition of her guardian to hermarriage suggests that the requirement of a guardian does notfunction to subject the woman to the guardian's physical control." Ifthe guardian has no legal power to block her marriage, then, whatfunction does the guardian play in the marriage of an adult woman?Al-Mawwaq quotes the Andalusian jurist, Ibn Lubb, as saying "Therequirement of a guardian is only to assure that the [requirement of]kafii'a is met, [which is accomplished] by means of the guardian'sjudgment."36 Kafii'a is a term ofart in Islamic law that refers to thesocial and religious status of the bride and groom. In the Malikischool, however, it is limited to simply religion and physicalcondition. Thus, it is defined as piety, i.e., in the sense of possessingreligious consciousness (tadayyun), and an absence of physical

a verb whose meaning is to cause another person trouble, and the judge orders theguardian to marry her to the husband of her choice. Ifhe persists in his refusal, thejudge will then act as her guardian unless the guardian shows good cause for his

refusal to accede to her desire to marry. 2 Al-Dardi r 376 ("wa ilia [yuzawwijhamin kujfhiij bi-an imtanda min kuf radiyat al-zawja bihi kOna Cadi/an bimujarrad al-imtinif fa-ya' muruhu al-hakim in raftt:atlahu bi-tazwTjiha thummain imtanoia zawwoja al-fiilcim" = "Ifhe does not [let her marry whom she Wishes]by rejecting a suitor whom she desires, he becomes Cadi/ simply by the act ofrefusal, in which case, the judge orders him, if she files a claim, to consent tomarriage. It he continues to refuse, the judge can contract the marriage. ").

J5 Of course, one cannot speculate about the efficacy of these remedies. It isconceivable that social attitudes, political considerations, etc., would conspire todeprive an adult woman ofany real remedy to her guardian's refusal to allow herto marry the husband of her choice. What is important to note in this context,however, is simply that legal doctrine provides two strong remedies for an adultwoman who finds herself in this undesirable situation.

36 3 Al-Mawwaq 432 ("talab al-wal] innama huwa Ii-ta~ul al-/wj(i'a bi-nazar alwaiT" = "The requirement ofa guardian is stipulated only to guarantee kafti'athrough the vehicle ofthe guardian. "),


defects that by law give the other party an option to annul themarriage (al-saldma min al-cuyiib al-mujiba li-l-raddy/! Moreover,lca.fii>a is only optional; both the wife and the guardian are free toaccept a groom that is not the social "peer" of the wife."

If the legal function of the guardian is to insure the existence ofan attribute, k£ifli'a, that is not very stringent, and at any rate, issubject to waiver, it is not surprising that Malik} doctrine shouldmake it relatively easy for an adult woman to circumvent herguardian's refusal to agree to her marriage. Does this mean that therequirement ofa guardian in the marriage ofan adult woman is nearlyan empty form? Not necessarily, although the real answer may havemore to do with the dynamics of contracting than with the legal roleplayed by the guardian. The principal role of the guardian, where thewoman is an adult, is not to determine whom she will marry butrather the terms on which she will marry. In other words, althoughthe law describes this person as a guardian, wall; in fact his role ismore akin to an agent, wakTl. Normally, however, a principal isalways free to contract for himself without the intermediation of anagent. What needs explanation, then, is why medieval Islamic lawwould require female principals to conduct marriage contractsexclusively through an agent.

I think the answer to this question lies in the nature of themarriage contract as occupying an intermediate position between apurely private relationship, and a publicly regulated relationship. Theambiguous role of the guardian reflects this tension. On the onehand, the fact that an adult woman needs the permission ofa guardianto marry restricts her power to marry." On the other hand, a woman

37 2 Al-Dardir 399-400.

]I ld: ("wa lalla . . . wa li-l-wal] tarkullaay: al-ka/ira wa al-ridii bi-sadamiha waal-tazwTj bi-fiisiq owmatyiih [sic.] aw'abd" = "Both the wifeand the guardian canwaive it, ie.. Jcofii'a, and they may consent, despite its absence, to marriage to adissolute groom, a physically disabled groom, or a slave. "),

)9 Incidentally, this also necessarily restricts the right of men to marry as well.Werethe govemment to play the roleof guardian in the marriages ofall adults, theguardian's roleas protector of publicinterests wouIdbe seen more clearly, and therequirementof the guardianwould be lesscloselylinkedwith the interests ofthewoman's male relatives. See the discussion of this point in greater detail, infra.


will normally have a series of guardians to whom she can turn in theevent that her closest guardian refuses to allow her to marry. Finally,the state exists as a guardian of last resort for a woman who is unableto find a male relative willing to penn it her marriage. The fact thata woman is not subject to an absolute "veto" necessarily lessens theability of a guardian to exercise his authority arbitrarily.

If the guardian is conscientious, and performs according to therequirements of law, i.e., he approves any marriage that his principalagrees to so long as the minimal requirements of kaftl'o have beenmet, does it make any sense to require the woman to contract hermarriage through the agency of her guardian rather than directly?Such a requirement could make sense if one assumes that theguardian will strike a better "bargain" for his principal than theprincipal could strike for herself. Such a justification need not bebased on a paternalistic assumption regarding female negotiatingabilities." Rather, it might be a recognition that parties to a marriage,because of the nature of the relationship, are poorly situated to reachthe bargain that both parties would presumably want to reach. Inother words, if the prospective bride were to bargain directly with theprospective groom over the terms of the contract, the transactioncosts" would be sufficiently high so that either agreement would notbe reached, or one or both parties will agree to "unreasonable" terms

woman's male relatives. See the discussion of this point in greater detail, infra.

40 For example, women were not required to act in the marketplace through anagent.

41 By transaction costs I refer to the costs required to reach an agreement. In certainsituations, even though an agreement would benefit both parties, transaction costsmay prevent the parties from reaching agreement. In the context of the marriagecontract, for example, a consequence ofdirect bargaining over the terms might bea reduction in the feelings of affection between the prospective betrotheds. (fthe"costs" associated with bargaining over the terms exceed the benefit of themarriage itself, the parties will not marry. Therefore, reduction oftransaetion costsis a salutory goal of law because it enables more beneficial exchanges to occur.Although the term transaction costs is an economic term, it corresponds roughly tothe concept of "rafcal haraj," i.e., removal of difficulty, in Islamic law. Theimportance of this concept in Islamic law is too great to do it justice other than inan independent article.


because of a fear that "tough bargaining" would risk the agreemententirely.

Therequirement ofa guardian may be a function of the need tolessen the transaction costs that prevent the prospective betrothedsfrom reaching the optimal set of contractual terms. When theguardian is the state, moreover, there is the added benefit that theparties' agreement wiIl reflect society's interests in the success of therelationship, something that may be ignored if the marriage contractis treated purely as a private relationship between the man and thewoman. On the other hand, one would expect - given the obviouslylarge number of marriages that would be contracted under thisbargaining arrangement - that a set of "optimal" default contractterms reflecting a majoritorian understanding of the "optimal" termswould be reached rather quickly." In this case the guardian's rolewould be little more than ministerial. Nonetheless. preservation ofthe requirement of a guardian may be justified when we realize thatmajoritarian contract terms are "optimal" only on the average;particular couples may always desire to deviate from the majoritarianmodel. I believe it is particularly in these circumstances. viz., whencontracting parties wish to depart from majoritarian default rules, thatthe guardian's role as an independent bargainer may be the mostuseful. Because the transaction costs present in any attempt by oneor both of the parties to alter majoritarian default rules are obviouslyhigh, the guardian, in consultation with the parties, may be in a betterposition to individualize the terms of the contract than the partiesthemselves.

Arguably, then, the mandatory use of a guardian, although insome sense paternalistic, nonetheless can be justified on efficiencygrounds because the presence of a third-party guardian allowsidiosyncratic parties to reach individualized agreements that wouldnot otherwise have been reached in the guardian's absence. Evenwere we to assume that parties with idiosyncratic preferences would

02 Indeed, this seems to be what in fact occurred historically, as one can find theterms of "model" marriage contracts that were developed by notaries (01muwaththiqTn) in "form" books from the Middle Ages. I have translated such amodel marriage contract for the appendix of this essay.


eventually marry anyway, their inability to individualize the terms oftheir agreement would probably lessen to some degree the likelihoodof the success of their relationship. Therefore, to the extent that webelieve that individualized contract terms reflecting parties' ex anteexpectations are positively linked with the success of their marriage,requiring a guardian as a facilitator of individualized contractualterms is a rule promoting efficient outcomes, i.e., successfulmarriages.

The previous analysis of the role of the guardian in the formationof the marriage contract leads to the following inescapable conclusion- whatever the "correct" rule may be regarding the identity of theguardian or his powers, the requirement of a guardian is not intendedto protect a private right of the guardian. In other words, it is amistake to consider the requirement of a guardian as a vestige of asystem characterized by families having property interests in theirwomen. This raises an important question: if the guardian is notacting to protect his own interests, whose interests is he representing?I believe the only answer can be that the guardian promotes theinterests of the Muslim community by ensuring that the contract is anequitable arrangement between the husband and the wife. This is atonce both a more attractive and more accurate interpretation than onethat claims that his role is to protect the woman's interests in themarriage. After all, the requirement of a guardian also burdens aman's right to marry. The fact that the guardian is usually from thewife's family, however, gives the impression that his role isexclusively to "protect" the woman's interest. As mentioned above,however, if we assume that the woman is an adult, she is always freeto have the state function as her guardian rather than one of her malekin.

Indeed, if it were the case that the state, rather than the wife'sfamily, routinely served as the guardian for the contract, the nexusbetween the requirement of a guardian and gender would be cut outby its roots. This is precisely the solution which I advocate - therequirement of a guardian should be understood to mean that amarriage under Islamic law requires the recognition of some publicauthority. To the extent that Islamic law authorized private persons,viz., the family ofthe woman, to exercise this power, they did so only


pursuant to a grant of power from the public authority; they were notexercising a vested private right outside the legitimate review of thecommunity's political authorities. Thus, it is always the right of aMuslim government to refuse to delegate this authority to the familyof the woman and instead exercise it itself."

That the role of the guardian in marriage should be interpreted asthough the guardian was exercising a delegated power from the stateis implicit in the jurisdictional structure of Islamic law. As far as Iknow, it is a fundamental premise oflslamic constitutional law thatall jurisdictional authority of limited authority (wiliiya khii~sa) isexercised pursuant to a delegation (tafwT4) from the Imam, who isthe fountainhead of all lesser jurisdictions in the Islamicconstitutional order." Therefore, under Islamic constitutional law,the state is both the guardian of those who lack a natural guardian,and those with natural guardians. Although jurists routinely justify

'.' This conclusion is implicit in the jurisdictional structure of an Islamic state,where lesser jurisdictions are explained as delegations from the central authority.Thus, Islamic constitutional law did not recognize the jurisdictional independenceof any of the sub-units of the state. Therefore, according to traditional doctrine, thecommunity appoints a ruler whose jurisdiction over community affairs is bothgeneral and unqualified ('amm mutlaq). In tum, he delegates this authority toothers, e.g., judges and governors. It is my contention that, under Islamic law, justas a person could only be a judge pursuant to a valid delegation, one could only bethe "guardian" ofa marriage pursuant to a valid delegation. The fact that relativesof the bride exercised this power without explicit delegation of power is notdispositive of the question I am raising, viz., what was the source of that power?I am arguing that use of relatives as the "guardian," rather than someone officiallyappointed by the state, cou Idbeviewed as an implicit delegation by the state, basedon the reasonable assumption that a relative of the bride's was the best person tocarry out this public duty. This is not simply clever lawyer talk. In the so-called"Constitution of Medina" (~Qh7fat al-madlna}, it is well-known that the Prophet(5) allowed tribes to exercise jurisdiction over certain crimes, so long as theyinvolved only members of that particular tribe. Yet, no one argues, as far as Iknow, that families have a vested right to exercise initial jurisdiction over crimesoccurring between members of a family. Therefore, the mere fact that Islamicstates have allowed relatives to exercise this authority is no evidence that theyenjoyed a vested entitlement to that office outside the normal jurisdictionalstructure of the Islamic state. Wa allahu a'iam .

.. AI-Miiwardi • AI-Alrkamal-sulfaniyya. (n.d.)

20 The .Journal of Islamic Law [Vol 3;1

the state's intervention in otherwise private relationships on thegrounds that the state is the guardian of those who do not have anatural guardian, they did not accept the negative pregnant (mafhumal-khiliij) of this statement. Thus, a Maliki authority noted that "itsnegative pregnant, viz., the state [i.e., the judgeJis not a guardian forwhomsover has a guardian, is not correct. Rather, the judge [i.e., thestate] is the guardian of every person. "45

Likewise, although medieval jurists assumed that the guardianwould usually be a male member of the woman's family, it is notclear whether they thought this was a vested right or simply a custombased default rule. What is true is that jurists assumed that thenormal legal requirements of integrity (Cadala) were required of"natural" guardians, just as it was a requirement for other holders ofpublic office. Thus, Ibn Qayyim al-Jawziyya reported that somejurists wanted to strip "natural" guardians of their authority overmarriage contracts on the grounds that they lacked the integritynecessary for that office in favor, presumably, of the guardianship ofan official of the state. While Ibn al-Qayyim disagreed with thisposition, his argument is revealing - while he admitted "natural"guardians might lack the integrity required under the strict standardsof the law, it was not clear to him that (l) public officials werenecessarily any more upright; and, (2) he believed that "natural"guardians were generally superior to public guardians because of thefeelings of kinship. When it comes to a choice between public andprivate guardians, Ibn al-Qayyim prefers the private guardian notbecause ofa vested, God-given right the private guardian is presumedto enjoy, but rather because of the perception that the "natural"guardian is better situated to perform the role intended by the law forthe guardian. In other words, the private guardian, according to Ibn

45 3 AI-Hauab 432("qawluhu wall man fii waliyya lahu majhiimuhuman laha wal]fa-Iaysa bi-wal] lana walaysa Iw-dnalika bal ai-qadi wal] kulli wfi/:Jid" = "Thestatement. 'Guardian for those who have no [natural] guardian, ' its negativepregnant is 'The judge is not the guardian of any woman having a naturalguardian, ' but that is not the case; indeed, the judge is the guardian ofeveryperson. ").


al-Qayyim, bears a strong family resemblance to that well-knownfigure of American tort law - the Best Problem Solver."

IV. CONCLUSION

All this might be interesting, but the reader must surely bewondering whether any of the preceding discussion has any relevanceto the conduct of marriages pursuant to Islamic law in the UnitedStates. I assure you that it does, and in the remaining few pages, Iwill try to make that relationship clear. It goes without saying that thepower of a guardian to compel the marriage of his minor children,whether male or female, although it was understood to be a naturaloutgrowth of the father's duty to take care of his children, has noplace in the practice of the modern Muslim community in NorthAmerica. Just as the guardian's power to contract marriages for hisminor children was limited by situations that were deemed by the lawto beharmful for the child, surely the vast majority of Muslims livingin North America would recognize the marriage of children to becategorically harmful to their interests and therefore unlawful underIslamic law." More importantly, and more controversially, I proposethat Muslim communities play the role of guardian in the marriagesof American Muslims rather than the "natural" family of the woman.

.. Ibn Qayyim al-Jawziyya.,Al-Turuq al-hukmiyya 256 (1978).

C1 Supra, note 12. Not to mention the fact that such a practice could lead, in certainsituations, to criminal prosecution under the laws of the several states. Somereaders might wonder whether it is legitimate, as a matter of Islamic law, to declaresomething categorically harmful, e.g., the marriage of minors, which has not beenpreviously considered to be harmful. This question raises important theoreticalissues that can only be dealt with in a summary fashion in this context. First,Islamic law understands that "harm" is a relative matter, i.e., what might beharmful to A, might not be harmful to B. Second, harm is a matter of fact, not amatter of law. Therefore, because whether something is harmful is an empiricaldetermination that is relative, the fact that someone said marriage of minors is notharmful per se is irrelevant as a matter of law to the question of whether themarriage ofminors in American society is harmful per se. Muslim jurists discussedthis question under the rubric of the difference between riwaya (narration) andshahlida(testimony). See, Sherman Jackson, The Constitutional Jurisprudence ofShihab ai-Din al-Qarlifi (1996).

-----


There are several reasons for this suggestion. As a matter of legaldoctrine, the Muslim community, when it is not living under theauthority of a Muslim state, enjoys the legal prerogatives of theMuslim state."

Thus, Muslim communities in North America have the legal rightto recognize only those marriage contracts that meet their standards.Obviously, they also have the right to delegate this authority to the"natural" guardians of the wife, or to any other Muslim, male orfemale. In my opinion, however, there are advantages to keeping thisauthority in the hands of the community. Unless marriage contractsare made with the active participation of the community, thecommunity will be deprived of the critical information necessary todetermine what are the equitable "default" terms of a marriagecontract between Muslim men and women in North America.Moreover, when both parties know that the community intervenes asa matter of course in the matter of the marriage contract, it is morelikely the parties will be more willing to share their concerns abouttheir future relationship, since the moral authority of the communitycan be used to help fashion the final agreement between the parties.Furthermore, the regular use of the community as the marriageguardian will help to insure that each party's legal rights are beingrespected, and that the interests of the Muslim community in thesuccess of the marriage are adequately protected. If the role ofguardian is fulfilled by the Muslim community rather than a malerelative of the wife, the perception that the legal capacity ofa womanis less than a man's will be removed. and needless to say, fighting thisperception is extremely important.

Indeed, while I have only anecdotal evidence supporting thisproposition, it seems that many Muslim women, especially the morehighly educated of them, are reluctant to marry out of a perceptionthat the "rules" are stacked against them. Ofcourse, ifmy suggestionwere enforced, but the "community" was not represented in ademocratic fashion such that the views of Muslim men and women

48 Al-Mawwaq quotes al-Qabisi as sayingthat "theactionof the community [ofMuslims], in theabsence of an Imam [viz., anorganized political state],is liketheruling of the Imam." 4 AI-7Oj wa-al-iklTI156.


were not taken into account in fashioning the community's view onwhat constitutes an equitable marriage contract, this reform couldconceivably make things worse for those women whose "natural"guardians would have routinely carried out their preferences.

Finally, by reasserting that marriage is not simply a privaterelationship between the husband, wife, and to a lesser extent theirfamilies, but also one that affects the interests of the community as awhole, the community will be in a better position to help work withcouples after marriage to help resolve differences between spousesamicably, and failing that, to minimize the damage that can occur asa result of a failed marriage.

[See next page for Model Marriage Contract]

24 The Journal of Islamic Law

ApPENDIX

(Model Marriage Contract)

[VoI3:l

A Father's Marriage of His Virgin DaughterWho Is Under His Authority

by Muhammad b. Ahmad al-Urnawi, d. 399/1009

This is what So-and-so, son of So-and-so, gave to his wife, Soand-so, the daughter of So-and-so, as a dowry. He gave her suchand-such gold coins of the prevailing currency in Cordova at the timeof this writing, [some in] cash and [some as] a debt.

The cash portion of the dowry was such-and-such gold coins. 80and-so, her father, took possession of them from her husband, as sheis a virgin under his authority and subject to his direction. He tookpossession [of the cash dowry] so that he could prepare her trousseauand other accoutrements for marriage. He [the father] declared thathe [the groom] satisfied [the cash obligation of payment of thedowry]; therefore, he [the groom] is free of that obligation.

The debt portion of the dowry is such-and-such gold pieces of thesame quality, the husband's payment of which is deferred, due inpayments upon such-and-such years, the first of which is such-andsuch month in such-and-such year.

So-and-so, son of So-and-so, has undertaken the followingobligations to his wife, willingly and freely, in order to win heraffection and to seek her utmost happiness:

Never to take another wife while married to her nor to take aconcubine nor an umm walad'" Ifhe does any of these things, shebecomes master of her own affair [i.e., she can divorce him], the

40 Umm walad is a term that literally means the mother of a child. It refers to aslave woman that has bore her master a child. An umm walad enjoys certainprivileges that other slaves do not. It is not clear to me what the difference is

between a promise not to take a concubine, viz., IiiyatOS"amdallii., and a promisenot to take an umm walad, since it would seem that former would necessarilyencompass the latter.


second wife is divorced, the umm walad is emancipated for the sakeofGod the Great, and control of the concubine is in her hands: if shewishes, she can sell her; if she wishes, she can [pennit him] to retainher; and, if she wishes, she can emancipate her from his ownership.

[He also has promised:) Never to desert her, whether [the journeyis] near or far, for more than six months unless he is undertaking theduty of Pilgrimage, in which case he may beapart from her for up tothree years, on condition that he announces this intention when hedeparts on his journey, setting out toward [Makka], leaving hersufficient funds for her maintenance, clothing, and housing. If hisabsence should exceed both limits, or either of them, she is free to doas she wishes; and, she is to be believed, upon [her claim of] thepassing of either of the two time limits, after she swears in her home,in the presence of two reliable witnesses, who warn her of God [i.e.,the consequences ofa false oath), that he [i.e., her husband] has beenabsent for longer than the stipulated period. Then, she is free to do asshe wishes [i.e., she can divorce herself], or she may wait for hisreturn, but her waiting shall not nullify her stipulation [i.e., her rightto divorce herself].

[He also promised): Never to take her from her home that is insuch-and-such city without her permission and her consent; and ifheremoves her against her will, she is free to do as she wishes. If shedeparts with him willingly, and then she requests to return, but hedoes not return her within thirty days of her request, she is free to doas she wishes, and he is obliged to compensate her for the expense ofthe journey, both going and returning.

[He also promised]: Never to prevent her from visiting all herfemale relatives and her closest male relatives whom she is forbiddento marry [maharim), nor to prevent them from visiting her in themanner that is customary among family and relatives. Ifhe does this,she is free to do as she wishes.

He is obliged to be a good companion for her, and use his bestefforts to live with her harmoniously, as God, may He be sanctifiedand glorified, has commanded him; and he has the right to the samegood companionship and best efforts from her, just as God has said,"And husbands have over them [i.e., their wives] a degree."


So-and-so, the son of So-and-so, knows that his wife, So-and-so,is not one who serves herself, but that, because of her social positionand condition, she is in need of servants; he declares that he is able toprovide her servants and that his property is sufficient for that, and hehas willingly obliged himself to serve her.

He married her according to the word of God, may He beglorified and elevated, and according to the practice of His prophetMuhammad, may God grant him blessings and peace, so that she willbe with him as a trust from God [amana! allQh], may He be sanctifiedand glorified, and [he married her] knowing that God gave wivesrights over their husbands, namely, that they live together with thekindness required by custom, or they separate on generous terms.

Her father, So-and-so, the son of So-and-so, gave her to him inmarriage as a never before married girl, under his authority andcontrol, in good health, pursuant to the authority God, may He beglorified and elevated, gave him over her person and over hermarriage contract.

There witnessed the declarations of the husband So-and-so, theson of So-and-so, and the father [al-munki~] So-and-so, son of Soand-so, who were mentioned in this writing, against themselvesaccording to what was mentioned about them in it [the writing] thosewho heard that from them and knew them, and [that their statementsoccurred] while they were of sound mind and body and of full legalcapacity, on the month of such-and-such of the year such-and-such.

Reinterpreting the Guardian's Role in the Islamic Contract of Marriage: The Case of the Maliki School

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