The Guardians of Islamic Marriage Contract and the Search for Agency in Twelver Shi’i Jurisprudence

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #4

[This is the fourth in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Moderator: Yaqub Mirza
“The Guardians of Islamic Marriage Contract and the Search for Agency in Twelver Shi’i Jurisprudence”
Vinay Khetia, MA, Islamic Studies, Concordia University, Canada

I examine the Imami debate over whether the mature virgin of sound mind requires the approval of her walî (guardian) to get married. If she married without the consent of her walî (who in Shia Islam is restricted to the father, grandfather, great grandfather, etc.), would this be an act of zina (fornication)? Where does legal agency (istiqlâlîya) lie? Contemporary jurists are of two opinions: that agency is shared (tashrîk) between the guardian and daughter, or that the agency belongs to the daughter (istiqlâl al-bint). We focus on the works of two contemporary jurists Ayatullah al-Sayyid Abul Qasin al-Khui’s Mabaânî al-`urwa al-wuthqa (representing the tashrîq) position, and his student Ayatullah al-Sayyid Sadiq al-Ruhani’s Fiqh al-Sâdiq (agency of the daughter). We shall also consider some Sunni positions. On the principle of mukhâlafa lill-`âmmah the Shia scholars resolve contradictory positions by rejecting the one closer to the Sunni position on the premise that it was an act of dissimulation. Lastly I shall consider the social function of compatibility (kafâ’a) and a`adl (prohibition from prevention of marriage).

One can find hadith to support almost any position including agency only on the part of the guardian and the reconciliation of these “apparent” contradiction takes up much of the juristic analysis. There are two traditions that are accepted in both Sunni and Shia traditions, (1) that the father’s permission is necessary and (2) that the father (but not other guardians) has the right to marry her off without her consent. Khui boosts the latter with the a supporting tradition that “none can annul the marriage except the father.” To these we have to add traditions supporting the agency of the daughter, and on these Ruhani parts company with his teacher Khui. In hadith (3) Imam Yahya instructs the questioner to consent on the marriage of his daughter to his nephew on the grounds of “her satisfaction for surely she has a propensity towards it within herself” which seems to give agency to the daughter. Further supporting hadith (3) are (4) “The woman who controls her own affairs and is not feeble-minded … she may marry without the consent of her guardian” and (5) If a woman controls her own affairs, [that is] she sells [goods]. Purchases, she is free, she acts as a witness, and she gives forth from her wealth as she wishes. Then surely her affair is acceptable, she may marry if she so wishes without permission of her walî.” (6) There is no harm in the marriage of a virgin if she is content (with the proposal) without the consent of her father. In addition we may mention the Prophet’s seeking of permission from Fatimah for her marriage to Ali. Khui and Ruhani differ on how to balance it against the others. For Khui that are harmonized by a reconciliation (al-jam`a) of at-tashrîk, in which the father cannot compel the daughter nor can the daughter act without his consent, combining istiqlâl al-ab with istiqlâl al-bint, It follows that the daughter may also contract her own marriage provided she obtains the father’s consent. Ruhani not only re-evaluates the hadith but reinstitutes the role of juristic preference to reach a different conclusion. Each claims his interpretation is consistent with the Qur’an, even though the Qur’an has no text directly addressing this question.

The principle of opposition to the Sunnis is not helpful here because the Sunnis differed among themselves. Further, Abu Hanifa’s view that it is minority rather than virginity that leads to the role of the guardian is suggestive of possible influence (in one direction or other) between the Hanafi and Imami positions on this issue. More research needs to be done on when the early books were written.

Imam al-Hindi sums up that it is a matter of ijma that a mature woman has agency in everything except nikah, about which there is a dispute. Al-Hilli writes “If the guardian prevents her (his daughter) from marriage and he is not marrying her to someone of equitable status according to her wish, for in that case it is permissible for her to marry even if he dislikes her  (in doing so), this is a matter of consensus.”  This implies that the authority of the guardian is not a blind power but an intelligent trust, a protective authority. Even the medieval scholars demonstrate a social awareness, for example, attributing the role of the guardian in the preservation of family honor, so even those who granted total agency to the girls, still urged her to seek the consent of the father to preserve the honor of the family. If the father denies the girl what is in her eyes a socially appropriate marriage, then he loses his guardianship. Without going so far as to accuse the scholars of intentionalism, there is enough evidence that scholars bring an ideology to their hermeneutics that affects the outcome.

Discussant: Mahmoud Ayoub

These are real, not just theoretical issues. Whatever the jurists say among themselves, the people in south Lebanon are not aware and the father assumes complete authority and if the daughter does not submit, she will get the beating of her life. There have been cases where girls asked to consent have refused even if it meant they would be killed, and some have been. You can attribute whatever you want to taqiyya, so that it is not a helpful tool. The clear injunction of Jafar Sadiq is that Shia may not turn to Sunni scholars. There is no ijma among the Sunnis anyway.  We have no choice but to give the people authority over themselves. The Lebanese scholar Shamsuddin wrote that the ideal state of the Righteous caliphs is impossible today and the divine rule of the infallible imam is also impossible, so people must have authority over their own affairs, minimizing the authority of the jurists over people in their own affairs. Wilâyat al faqîh is not a new concept. It goes back to the 12th imam, but it was a moral and juridical authority. All Khomeini did was add a political aspect, which led to the Iran of today. I believe two kinds of people should never be allowed to rule: the military and the religious. Jafar Sadiq said, “The scholars are God’s trustees over his revelation until they knock at the doors of the ruling authority; when they do suspect them?” I add, then what happen when the ulama themselves become the ruling authority?

Discussant: Mohamed Adam El-Sheikh

This is my first opportunity to learn about the Shia schools. According to the “Sunnah,” by my own investigation, it is not to that level. All the hadith about this subject have some defect, even the most commonly applied hadith. According to Imam Malik the forcing power of the guardian belongs to the father or grandfather or if they are not present some other man from the father’s side. It might be justified because daughters or sisters were pledge to marriage at a very early age, 13 or 14, and unable to negotiate their dowries or the conditions, so that it was for the protection of minors. In Egypt or my own country Sudan—even though it is Maliki in other respects—people now adopt the position of Abu Hanifa, as well thought out. His opinion is also applied in America: A woman of mature mind, whether virgin or previously married has the right to marry without consent of her guardian, although obtaining that consent is preferred. We used ask the imam to be a woman’s walî, but then it led to some collusion so we found it better to let the woman be her own walî. Marriage must be a contract between two competent individuals. The most acceptable Sunni hadith in my opinion is the one of the woman who told the Prophet, “My father has given me in marriage to his nephew.” The Prophet asked the father to justify his action. The daughter then told the Prophet that she consented to the marriage; she only wanted his confirmation that her consent was required.

General Discussion

Hashim al-Talib: Please clarify the term Imami.

Khetia: Imami can mean Jafari or Ismaili, but in my paper it refers only to the Twelvers, or Jafari. The view we have called the position of Abu Hanifa may have been the custom of Iraq that may have been retroactively attributed to him.

Ayoub: During the mid-tenth to mid-eleventh century (“the Shia Century”) the Shia were completely open to Sunni ideas. Only after the 14th century did that change. The whole idea of mukhâlafa lill-`âmmah must be used with caution.

Khetia: I strongly recommend Akecia Ali’s Marriage and Slavery in Early Islam. In that period, as in rabbinic Judaism, marriage and slavery had much in common. The question on which there is no agreement is whether a girl’s emancipation is achieved by majority or by marriage.

Laila Ghauri: Who represents the woman?

Khetia: Anyone can, including the woman herself. The question is not who represents her, but who is her guardian?

Abubaker El-Shingieti: This is the difference between the wakîl and the walî.

Adam El Shiekh. In very conservative families we send the wali and two witnesses to ask (1) does she accept this man; (2) does she accept the advanced and deferred dowries; and (3) does she have conditions she wants to be mentioned. Sometimes we might ask if there is a pre-nuptial agreement.

Ayoub: Tabari laid down that a woman can lay down any conditions he wishes in the contract, even to refuse to do housework—with only one limit: she cannot refuse to lay with him since that is the point of the marriage.

Khetia: I know an imam who will not accept to marry a couple if they have not negotiated a contract.

Louay Safi: This conversation is interesting, but it strikes me as out of place and out of time and very literal as well. Does the woman have agency? Can women have control over their own bodies? I think young American-born women hearing this conversation would be driven away by it. How can we say women can be judges or even rulers and still ask whose permission they need to marry? If people who care about Islam continue to go back to those arguments, Islam will continue to be marginalized. I think the fuquha are approaching the text with a preconceived conclusion in mind.

Adam El Sheikh: We cannot just jump out of what we know into something foreign to our background. Change will come, but gradually.

Khetia: I mentioned that the jurists have serious pastoral concerns almost to the brink of defending women’s rights. It is so simple for a woman to marry whom she wishes. Marriage has always been a family enterprise rather than an individualistic one. The scholars emphasize their fear of a father being high-handed with his daughter and categorically reject such behavior. Maybe there should never have been a ruling giving the guardian agency in the first place, but in fairness, someone like Alama al-Hilma, a contemporary of Ibn Taymiyyah, writes so many reasons for giving the woman absolute agency while at the same time cautioning protecting her from possible machinations of her intended.

M. Ayoub: Islam liberates, of course, but our history is open for everyone to study. Either we study it or we end up in apologetics, and apologetics leads nowhere. Academic freedom is important and the study of history and culture is important even if we must study things that from the perspective of the 21st century seem lacking. I appreciate what Br. Louay is trying to do, but in the end it doesn’t work.

Hisham Altalib: This study appropriate in the context of this scholarly meeting. It would be inappropriate for a public lecture in a masjid.

El-Shingieti: It is valuable to integrate the best of this history and integrate it into the thought of our time.

Safi: That is my point. This is not a time to go back in time.

Anwar Haddam: The first thing we should learn from this is it is not an easy matter. The compilation of the hadith has not been resolved as yet. Second, your paper shows the relevancy of such debates to those of us in West to the formulation of a methodology. I believe the great scholars are the liberal scholars: the more you know the more you know you don’t know. Our approach is family-oriented, but we live in a society that is not family-oriented. Our concern is to protect the family, which is the founding unit of society.

Khetia: It’s important for the fatwa to be relevant to our times. What I have presented to you are the lecture notes of their students. In the books of fiqh they give their one-sentence conclusions, which is not enough. I am not supporting anyone, only exposing the reality to which we must face up. I am not going to water down the patriarchal history of the Abrahamic religions. We must recognize that there are patriarchal and misogynistic hadith even if we wish to reject them.

Sarah Chawdhury: Virginity is sexual and maturity is psychological.

Khetia: When we spoke of the virgin of sound mind we speak of a woman who is unmarried but who is knowledgeable to the ways of the world. It is for this reason these texts have a relevance to modern society where unmarried women who work and are educated are common.

Michelle Church: I’m confused. I received three marriage proposals through women (mothers) at an extremely conservative mosque; all the questions put to me by women through my friend six months out of Saudi Arabia. Her husband never got a single question from the men (fathers of the prospective husbands) who seemed to play no role at all. It seemed to be totally controlled by the women. Is my case unusual?

Khetia: Like rabbinic jurisprudence, these academic analyses can be very divorced from social reality.

Laila Chawdhury: Is there more than hadith involved. Can you elaborate? Also, elaborate on the contractual nature of marriage.

M. Ayoub: There have been real efforts among Shia ulama to come closer to Sunni thought. We should bless and work with such efforts, because above all we need unity. Legal jargon in Islam makes a distinction between virgin and non-virgin and it is applied to both men and women in different ways. Virginity is a marker for immaturity as girls in that society usually married early. Many of the women in early Islam, including the daughters of the Prophet died young because they got pregnant before their bodies were ready. It was a cultural problem.

Khetia: I recently obtained a manuscript of all the claims to ijma among the early Shia. There is the case of a sheikh who contradicted his own claim to ijma 70 times, which raises the questions of what does ijma mean in such a case? Because some of the early scholars rejected solitary traditions, some of the claims of ijma may have referred not to literal consensus, but to a tacit consensus that such an opinion exists and has some support or evidence. I don’t agree with this, but it is there.

M. Ayoub: The imam is the safeguard of the integrity of the society. In the absence of the Imam scholars can err and if each scholar can err individually, it is possible that all can err collectively so you can have no ijma. Suppose the entire Shia community were to agree on an era, that would be cause for the imam to return.

Kenneth Honerkamp: I know of no one who was attracted to Islam by fiqh or aqîda. People are attracted by the heart in the community or because of Sufism. As far as women being the agents of the marriage contract, in Morocco, it is the women who do everything and the men are informed at the end of the process. Perhaps the scholars have distanced themselves for the ummah.

Khetia: If you are interested in more on this subject, Harvard published a wonderful book devoted to the Islamic marriage contract (The Islamic Marriage Contract: Case Studies in Islamic Family Law). By Shia law, couples can amend the contract by mutual consent regardless of whatever terms may have been included by the walî.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

 

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