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THE JOURNAL OFISLAMIC LAWAddressing Issues ofLaw Religion n Culture

\Volume 3 Number I Spring/Summer 1998

CONTENTS

ArticlesReinterpreting the Guardian s Rolein the Islamic Contract of Marriage:The Case of the Malikl Schoolby Mohammad Fadel 1AJ-Mu allaqa: The Muslim WomanBetween Divorce and Real Marriage

by Abdul Hakim Quick 27The Myth of Misogyny: A Reanalysis of Women sInheritance In Islamic Law

by Zainab Chaudhry 41

Research ToolsSelected List of U S basedWriters Lecturers Consultants on Islam 99List of Muslim Women Organizationsof North America 104

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

Mohammad der

CONTENTS

I INTRODUCTION III. BACKGROUND 5III. THE W I I AS AGENT OFTHE WOMAN/COMMUNITY 12IV. O N L \ ~ O N 2]A fllN01X:MMI l MARRIAGE CONTRACT 24

I INTRon ICTIONIt is not unusual to hear said in the popular media that Islamic law

d ./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 Islamic regime inAfghanistan. Unfortunately, I do not believethe record of Saudia Arabia in thisrtlt rd is much better.

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2 The ournalof Islamic Law [Vol 3:1take 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. t 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 3 hcentury to the 8 hcentury of the Christian Era. This alleged property right, however, is only partial -- it is limited to the powerto exclude. t 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

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Spring/Summer 1998] Guardian s Role in Marriage ontract 3This essay will not attempt a detailed analysis of all the rules

regarding the role of the guardian in the marriage contract. That initself would require a monograph. Instead, I attempt to provide abroad overview of the 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 subsequently me 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. 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 basis 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 of jurisprudence, 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 m shhiir i.e., the famous opinion. An things being equal, whichoften was not the case, courts are supposed to apply the m shhiir opinion. Muslim jurists would generally refer to the public authority, interchangeably, asthe ImAm, or the sultan, or the hakim. Thus, when jurists say something likeIt is a matter for the Imam, it should not be taken Iiterally. In other words, theyare ~ y i n it is merely a question for the public authority, not Iiterally that the

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4 he.Journal ofIslamic Law [Vol 3:1Malik 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 womanhas 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

personwith the title of 'mam ismpow r to resolve it t should be noted thatuse of the term qadi or judge also qualifiesas a generic representative of thepublic authority because the judge isa creatureof the public. I argue, however, thatevenassumingthe Malikis'distinctionbetween males andfem les in reg rdto em n ip tion w s leg llyjustified theircontinuedtre tmentof an adult femaleincapable ofmanagingherown 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 managingber property. Afather did not have power to compel the marriageof an adult male whose legalincompetence w s consequence of his in bility to m n ge his own fin nci laffairs. Therefore, thepropertreatmentof anadult.unemancipated womanshouldh ve been the s me s m le who w s incapableof m n ginghis own fin n i laffairs, i.e.,while the fatherhasthepowerto vetosuchan incompetent'smarriage,he does not have tbe power to compelher to marrycontrary to her will.

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~ r r i n l o / S l l m m e r 1998) Guardian s Role in Marriage Contract 5exercised hy a guardian. understoodas 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 s gents 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 A I S b a r ~ a l ~ l g b i rdonot 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 irstmarriage of his daughter. A father also retains the power to compel

Cf. Ibn Rushd tbe Grandson, 2 Billhul-mujlabid wa nihiyat l m ~ j d 7-9(Bierut; Dir alfi1

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he .Inurnal nf Islamic Law [Vol 3:1 lthe marriage of his previouslymarried 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 guardianwas 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. t would seem that

face, is nevertheless 3 virgin forpurposesof this rule11 \ 1 the pre modem era marriage of minors was a common practice, althoughconsummation W ; not to occuruntil theonsetof puberty. Thisrule simply statesthat aminor girlwho ismarried but whose marriage isneverlegally consummated.retains the legal statusof a virginforthequestionof the father s power to compelher subsequent marriage11 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. f course. he could still compel her marriage on either of the twopreviously mentioned grounds.u Abiial-BarakatAhmad b. Dardir,2 AI Shari l ~ ~ 355 ( wa mahalljabr 01ah al-thatatha idh 10myalzom alii tazwTjiha darar ado . . . mimmayuroddual-zawj bih: sharon The father enjoys the power 10 compel in lire three{mentionedcases] so long 0. no harm. by which lire husbandwould 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. Transliteratedquotationsof 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 wasiyyihi al-bikr wo al-sagh7 0 woal ma} iina Iiijabra li-ahad mtn al awliyDl o{QunthO ~ g h r 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 ofafemale. 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

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The Journal ofIslamic Law [Vol 3:1 t w ld be easy for a casual observer to assume that the power

to 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 s m 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 havebeenmet owever he does statethatit isbetter to consult the judge to insure the validity of the marriage ntramtustahsan almu.

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llrrinlllSummer 1998] Guardian s Role in Marriage Contract 9row r to him. supra, the designated guardian s power to compel anorrhlln hoy s marriage was part of his default powers.

he 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 femalewasnot 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 ifh r 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 ( /iI-wasTjabr al-dhalear li-l-maslaha law lam yaku lahuiahr al-u tha leama idha qala (al-ahllahu: anta wasiyyi ala waladT. Thegu rdi n by te fl men rydesignatio c n compel the m rri ge m le 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, whethe father tells him, You are my desig ated successor over my children. ). Itshouldbe noted.however.that the jurists tone in discussing the exerciseof thispower is substantiallydifferent in the case of a male than a female: A guardiancompelsthemarriage of hismalewardto gainanadvantage for his ward. whereastheguardiancompelsthemarriageof his femalewardoutof fear for her moralormaterial well being 3 AI Hatlib MawQhihal.,jam 458 ( Ia khi/iiffl jawiiz i leanih ihi al.saghTr . . . idhii kana flh alghihta wa al-raghha lo-nilonihi mtn 01ma 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 wealthywoma . I.. 3 AIDanru38283 ( wa al-sob]mahjiir atayhi. /i.buliighihi rashTdan . . . zTdo . . . al.unthii duthiil zawj hihii. wa shahiidat al- udUJ bi-hjftihiimalaho. A minor male is legally i n p o i t t ~ until he auains puberty, in asound state ofmind . . . It is also required In the caseo a 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-IWQST. nrefather, ltke the guardian by designatio , may emancipate her prior to her takingup residence i her marital home. ).

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1 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 ofwomen 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 bedivided 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

:IAID rdir ( 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 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. 39596 (mentioning that only the father, his designated successor. and thejudge may compel the marriage of the insane and minor males).

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ll'ring/Sllmmer 1998] uardian sRole in Marriage Contract IIlenrning 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 contrast 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 of a 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 ili bi-an Goa ai-wafT mujbiron . . . ft ayasi rIJ fuslkho abodan. = Amarriage is valid when contractedbya distant gwrdian . . . although a moreclosely related guardian present. so long as he did nOlhove 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 Insomesense it is ch rit ble to describe this s mist ke ndnotttribute itto some other, less benign. explanations.

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12 he .Journal of Islamic aw [Vol 3:1T l THE W LT AS GENTOFTHE WOM N 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 ibnf t sharTfa wa ghayrihiifa-fO yufsakh hi ha I =The marriage isvalid with a distant guardian, e.g., a paternal uncle n his son,even though a closer, non-compelling guardian, e.g.. a father n son, is present;so (such a marriage] is not to be annulled under al 1 circumstances. pp, 363-64;see also. 3 Al-Mawwaq 432 (providing citations to ancient Miiliki sourceswhorecognizethe validityof such a maniage contractso longas the woman consents).

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Spring/Summer 1998] Guardian's Role in Marr iage Contract 13woman 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 su 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 m twujud akhass ol-owuydfa-idha lam tarda al-mar a bi f udiir abadmin 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 I Halliib432 ( al-nikiih yasifi1idha oqadahu al-abiad m twujudalaqrab idha lam yakun mujbiran wa law kGnaal-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 acondition forthe validity of the marriage. 2 AI-Saw 363. 2 Al-Dardi r 375 ( wa calaal-wallwujUban 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 dlnihi w 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 ruleof the Miiliki school is that when a guardian of an aduItwoman 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 isdeclared to be cOd an active participle derived from

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14 The ournal of slamicLaw [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. fthe 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 thejudge 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 hisrefusal 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 bimujarradal-imtinif fa-ya muruhu al-hakim in raftt:atlahu bi-tazwTjiha thummain imtanoia zawwoja al-fiilcim fhe 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. t he continues to refuse, the judge can contract the marriage. ).J5 fcourse, one cannot speculate about the efficacy of these remedies. It isconceivable that social attitudes, political considerations, etc., would conspire todeprive an adult woman of any 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 A l awwaq 432 ( talab al-wal]innama huwa i t a ~ u l al-/wj(i a bi-nazar alwai The requirement ofa guardian is stipulated only to guarantee kafti athrough the vehicle of the guardian. ),

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Spring/Summer 1998] Guardian s Role in Marriage ontract 15defects 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, kifli 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 marriageofan 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 of a guardianto marry restricts her power to marry. On the other hand, a woman

37 2 Al-Dardir 399-400. ld: wa lalla . . . li-l-wal] tarkullaay: al-ka/ira al-ridii bi-sadamiha waal-tazwTj bi-fiisiq owmatyiih [sic.] aw abd Boththe wifeand the guardian canwaive it, ie.. Jcofii a and they may consent, despite its absence, to marriage to adissolute groom,a physically disabledgroom, or a slave. ), Incidentally, this also necessarily restricts the right of men to marry as well.Werethe govemment to play the roleof gu rdi n inthe m rri ges ofall adults, thegu rdi n s roleasprotector of publicinterests wouIde seenmoreclearly, and therequirementof theguardianwoulde lesscloselylinkedwith the interests ofthewom n s malerelatives. See the discussion of this point in greater detail, infra.

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Spring/Summer 1998] Guardian s Role in Marriage Contract 17because o a fear that tough bargaining would risk the agreemententirely.

Therequirement o guardian may be a function o the need tolessen the transaction costs that prevent the prospective betrothedsfrom reaching the optimal set o contractual terms. When theguardian is the state, moreover, there is the added benefit that theparties agreement wiIl reflect society s interests in the success o 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 o marriages that would be contracted under thisbargaining arrangement - that a set o optimal default contractterms reflecting a majoritorian understanding o the optimal termswould be reached rather quickly. In this case the guardian s rolewould be little more than ministerial. Nonetheless. preservation othe requirement o 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 o 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 o the contract than the partiesthemselves.

Arguably, then, the mandatory use o a guardian, although insome sense paternalistic, nonetheless can be justified on efficiencygrounds because the presence o 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 1-muwaththiq n in form books from the Middle Ages. I have translated such amodel marriage contract for the appendix o this essay.

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The ournal slamic Law [Vol 3:1eventually marry anyway, their inability to individualize the terms oftheir agreement would probably lessen to some degree the likelihoodo f 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.

Th e 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

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Spring/Summer 1998] Guardian s Role in Marriage Contract 19pursuant 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 inmarriage 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 k h i i ~ s a 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 mycontention 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 Id viewed 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-calledConstitution ofMedina ~ Q h 7 f a t al-madlna}, it is well-known that the Prophet5 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.)

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20 The Journal of slamic Law [Vol 3;1the 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 ofnatural 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 naturalguardians 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 naturalguardians 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 naturalguardian is better situated to perform the role intended by the law forthe guardian. In other words, the private guardian, according to Ibn

45 I Hauab 4 ( qawluhuwallman fiiwaliyya lahu majhiimuhuman lahawalfa-Iaysa bi-wal] lana wa laysa 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 of everyperson. ).

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22 h ournal of slamic Law [Vol 3:1There 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 inNorth 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 thenatural guardians of the wife, or to any other Muslim, male orfemale. In my opinion, however, there are advantagesto keeping thisauthority in the hands of the community. Unless marriage contractsare m de 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 knowthat 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 of a 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, 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. f course, ifmy suggestionwere enforced, but the community was not represented in ademocratic fashion such that the views ofMuslim men and women

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

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Spring/Summer 1998] uardian sRole in Marriage Contract 23were 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 naturalguardians 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 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]

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24 The Journal of Islamic LawpPEN IX

Model Marriage Contract)

[VoI l

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

by Muhammad b. Ahmad al-Urnawi, d. 399/1009This is what So-and-so, son of So-and-so, gave to his wife, So

and-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 portionof 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. is not clear to me what the difference isbetween a promise not to take a concubine, viz., yatOS amdallii and a promisenot to take an umm walad, since it would seem that former would necessarilyencompass the latter.

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Spring/Summer 1998] Guardian s Role Marriage Contract 25second 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 eapart from her for up tothree years, on condition that he announces this intention when hedeparts on his journey, setting out toward akka] leaving hersufficient funds for her maintenance, clothing, and housing. f 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 of 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. fshedeparts 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. fhe 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 h s said,And husbands have over them [i.e., their wives] a degree.

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26 The ournal slamic Law [Vol 3:1So and so the son So and so knows that his wife So and sois not one who serves herself but that because her social position

and condition she is in need 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 God may He glorified and elevated and according to the practice His prophetMuhammad may God grant him blessings and peace so that she willbe with him as a trust from God [amana allQh] may He 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 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 glorified and elevated gave him over her person and over hermarriage contract.There witnessed the declarations the husband So and so theson So and so and the father a l m u n k i ~ ] So and so son So-and 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 sound mind and body and full legalcapacity on the month such and such the year such and such.