Al-Siraj Al-Munir

A Refereed Semi-Annual Scientific Journal Issued by the Libya Scholars Association

Issue (3) Shawwal 1437 AH – July 2017 AD

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Prof. Dr. Omar Mawloud Abdul Hamid

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Dr. Ali Suleiman Al-Zoubi

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(2017/57 National Library)

A Maqasidi Analytical Reading of Shared Guardianship (Wilayah al-Shirkah) in the Marriage Contract

Dr. Ruqayya Taha Al-Alwani
Associate Professor at the University of Bahrain

Introduction

Customs and temporal and spatial circumstances occupy a vast space in the realm of human rulings and organizations. Accordingly, Islamic Sharia has taken into account the customs of people, their living conditions, and the changing states of their environments. It has also considered the circumstances and conditions of the legally responsible individuals (mukallafin). Consequently, its rulings emerged far from idealism and mere theorization, being as close as possible to realism and balance. However, it defined the general framework that these human customs should not exceed, regardless of their strength in souls and societies. It maintained customs that align with Sharia teachings, building some rulings upon them, while rejecting what contradicted Sharia with wisdom, deliberation, and insight.

Furthermore, the Wise Lawgiver left people the freedom to judge many of their habits and customs within the framework of established criteria and conditions for accepting or rejecting any custom. Among these are the general conditions agreed upon by scholars for the acceptance of customs, such as not contradicting definitive legal texts (nusus qat’iyyah), and that the custom must have been established prior to the issuance of the Sharia ruling... etc., among other conditions detailed by scholars in their works on custom (‘urf).

The issue of guardianship (wilayah) in the marriage contract—which this study addresses—is among the issues where societal customs and the circumstances and conditions of people and their communities intersect and vary to varying degrees. This necessitates that contemporary mujtahids and researchers today pay attention to this matter and study it with impartiality and realism to understand the manat al-hukm (the locus of the ruling) in guardianship and to ensure how it is realized in reality within a Maqasidi (purposive) and consequential understanding of guardianship in the family institution. It also requires attention to the ma’alat (consequences) of those rulings and their applications, as many brilliant jurists did in their respective eras and societies.

The importance of this type of reading and analysis is evident in how many ijtihadic rulings and jurisprudential opinions are influenced by the requirements of customary backgrounds and environmental projections. This makes it imperative to reconsider and distinguish between rulings based on custom and those that are fixed and unchangeable despite changing customs, on one hand, and the consequences of all this within the general climate and rapid developments, guided by the objectives (maqasid) of legislation regarding family rulings and jurisprudence, on the other. Neglecting to consider this or being lenient in any part of it could lead to social problems and family corruption that clash with the objectives of legislation and its nature based on understanding reality.

Hence the importance of this paper. The issue of guardianship in the marriage contract is being raised today amidst wide-ranging developments; some related to the nature of family relationships, and others related to the environmental and societal circumstances in which the mukallaf lives, among other matters. This places a burden on the researcher in this and similar issues to attempt a Maqasidi analytical reading that aims to identify the expected consequences and results that may arise from applying this or that jurisprudential ruling in light of understanding the realization of the manat al-hukm in a diverse reality with multiple problems and needs, and how to apply it and the objectives of legislation in light of the evidence from the Quran and the authentic Sunnah and their understanding.

Absenting these dimensions when considering this matter could become an invitation to tamper with Sharia rulings through misunderstanding, flawed application, or deviant implementation, thereby marginalizing and absenting the Sharia objectives within them. Jurisprudence (fiqh) is a human effort aimed at addressing a reality with different coordinates and branching dimensions, not providing ready-made stereotypical templates to be applied in various environments and conditions without comprehending that through realistic study and collective applied treatments.

The paper addresses "Shared Guardianship" (wilayah al-shirkah) in the marriage contract within the conceptual-terminological framework, the jurisprudential framework and its manat al-hukm, and the Maqasidi consequential framework to arrive at a proposal for treatment according to the final outcome of that investigation and tracking. And Allah is the ultimate goal.

First: The Terminological and Conceptual Framework of Guardianship (Wilayah)

Wilayah in Language: Derived from the triliteral verb (waliya). It is said: waliya al-shay’ (he took charge of the thing) and waliya ‘alayhi wilayah (guardianship/authority). The letters Waw, Lam, and Ya form a sound root indicating proximity and nearness. It is said: "He moved away after waly," meaning nearness, and "He sat mima yalini," meaning near me.²

Walayah (with a fatha on the Waw) means support and alliance, as in the Almighty's saying: {You have no [duty of] walayah (protection) towards them at all}³. With a kasra (Wilayah), it means authority, office, emirate, sovereignty, and the lands over which a governor rules. Or the fatha is for the infinitive and the kasra is for the noun, as it is the name for what you have taken charge of and managed in affairs.⁴

Ibn al-Athir (may Allah have mercy on him) says: "It is as if wilayah implies management, power, and action; as long as these are not combined in it, the name wali (governor/guardian) is not applied."⁵

The Wali—on the pattern of fa’eel—means the doer (fa’il), from waliyahu: if he stood by it, took charge of its affair, helped it, supported it, and loved it. From this is the Almighty's saying: {Allah is the Wali (Protector) of those who believe}, meaning their supporter, backer, and the one who takes charge of them with His help and success.⁶

It is clear from the above that the term wilayah in language refers to many meanings, the most important of which are: love, support, sovereignty, power, and management. It is a word used for what requires management, power, and action arising from support caused by a considered reason, such as proximity, love, alliance, and the like.

In Technical Terms: Definitions have varied, and perhaps the most famous is what appeared in the Encyclopedia of Concepts: "The ability to directly execute a transaction without depending on the approval of anyone else. It is a legal authority granted to the one who possesses it to initiate and execute contracts and transactions such that their legal effects follow immediately upon their issuance."⁷

Guardianship is of two types: restricted guardianship (wilayah qasirah) and transitive guardianship (wilayah muta’addiyah).

Restricted guardianship is: the legal ability of a person to initiate a valid and effective transaction upon themselves.
Transitive guardianship is: the legal ability of a person to initiate a valid and effective transaction for others.

Transitive guardianship is also divided into two parts: guardianship over property (wilayah ‘ala al-mal) and guardianship over the person (wilayah ‘ala al-nafs). Guardianship over marriage falls under guardianship over the person.

Guardianship over the person: An authority held by the guardian over the ward; it grants him the right to marry them off, discipline them, educate them, provide medical care, and look after everything the person needs as long as they are under guardianship, whether the ward wishes it or not, for the sake of the ward's own interest.⁸ This includes the specific guardianship of marriage.

It is noted in many definitions the use of the word "authority" (sultah). Some emphasize it is a "legal authority," while others suffice by saying it is an authority enabling its holder to directly execute contracts. However, the Holy Quran stands decisively against authoritarianism (tasallut) in all its types and forms. Thus, the term wilayah came in contrast to the term sultah (authority/power), because of the connotations of authoritarianism and the use of force that the latter carries. What is more consistent with the spirit of Islam is the term wilayah, due to its meanings of care, concern, and guidance. This meaning applies entirely to the purpose of private guardianship, as it—more so than public office—is in greater need of the meanings of concern, care, and guidance due to the strength of its cause, for "private guardianship is stronger than public guardianship."⁹

Accordingly, many contemporaries have noted the necessity of distinction and precision in using the term. The term wilayah includes the ability and management in a way that encompasses providing sincere advice, realizing interests and needs, and being gentle.¹⁰ Hence, the study emphasizes the importance of focusing on the meanings of care, advice, and consultation and including them in the definition of private guardianships specifically, including guardianship in the marriage contract, as well as public ones.

The Concept of Wilayah in the Quran: It is a common concept in the Holy Quran, and its meanings revolve around:

Companion without kinship: as in the Almighty's saying: {And he whom Allah guides is the [rightly] guided; but he whom He leaves astray - for him you will never find a guiding wali (protector)} Surah Al-Kahf / 17. Meaning a guiding companion.
Kinship: as in the Almighty's saying: {Then he between whom and you was enmity [will become] as though he was a devoted wali (friend)} Surah Fussilat / 34. Meaning a relative.
Help and Support: as in the Almighty's saying: {That is because Allah is the Mawla (Protector) of those who have believed and because the disbelievers have no mawla} Surah Muhammad / 11.
Advisor: as in the Almighty's saying: {Let not believers take disbelievers as awliya (allies/advisors) instead of believers} Aal-Imran: 28. Meaning in advice.

Here it becomes clear that wilayah is linked to a series of other positive concepts: faith, support, love, proximity, help, advice, protection, and sufficiency. From here came the saying of the Prophet ﷺ: "Lo! All of you are leaders and every one of you is responsible for his subjects. The Imam who is over the people is a leader and is responsible for his subjects; a man is a leader over the members of his household and is responsible for them; a woman is a leader over the house of her husband and his children and is responsible for them; and a servant is a leader over his master’s property and is responsible for it. Lo! Every one of you is a leader and every one of you is responsible for his subjects."¹¹

The hadith used the broad term "care/leadership" (ri’ayah), which includes guardianship and responsibility in their multiple dimensions according to the position assigned to the individual, following the meaning of collectivity commanded by Sharia, not the concept of individualism and despotism of opinion rejected by Sharia and custom. The hadith clearly indicates the obligation of every individual in society to perform the tasks entrusted to them, and that they are responsible for them—whether they preserved or neglected them—whether the responsibility is public or private, large or small.

The reason for all the above is that the purpose of all guardianships is to enjoin good and forbid evil, and to rule by the Book of Allah and the Sunnah of His Messenger ﷺ in all matters, small and large, and to create a society where the holders of guardianships—no matter how large or small—are a good example for those whose affairs Allah has entrusted to them. You see them keen to perform their duty more than they are keen to demand their rights. They view guardianship as a responsibility (taklif), not an honor (tashrif), and they pray to Allah to guide them and help them bear the burden placed on their shoulders. Thus, the righteous society that Islam seeks is formed.¹²

On the authority of Ma’qil bin Yasar , he said: I heard the Prophet ﷺ say: "Any servant whom Allah has entrusted with subjects and he does not surround them with sincere advice, he will not smell the fragrance of Paradise." (Narrated by Al-Bukhari). This points to an extremely important matter: that wilayah in the Quran is a series of obligations, functions, and duties, and not merely an authority or ability to execute a specific order. Consequently, it is important to include these meanings in the definition of wilayah through its functional role first, and then include powers by virtue of the role and based on its consideration and performance. It is more appropriate for these meanings to appear in the definition of guardianship in the marriage contract so that no confusion or illusion arises that this guardianship is a legislation for the guardian's unilateral opinion in the marriage contract and its execution, as this understanding differs from the reality of the Sharia ruling and its objectives.

Here comes the role of social upbringing—that process by which a human being transforms from an individual into a person who acquires cultural and social traits, understands the required social roles, and adapts to their culture and environment.¹³ Attention should be paid to directing the concepts of guardianship, care, and communication within the family from early childhood through sound social upbringing. The family is the first cradle capable of transferring orders and ideal rules of social control to children, teaching them what is expected of them in different social situations, and shaping their social relationships,¹⁴ so that guardianship in the family becomes a basic functional component performed by individuals that governs all their family relationships. Everyone cares for the other, so the family becomes the first and most important care home in society and the nation, through which individuals practice all forms of solidarity and integration in the absence of the concepts of authoritarianism, conflict, and selfishness forbidden by Sharia.

Guardianship according to jurists is of two types: guardianship of choice (wilayah ikhtiyar) and guardianship of compulsion (wilayah ijbar).

A - Guardianship of Compulsion (Wilayah al-Ijbar): This is full guardianship because the guardian initiates the marriage contract without anyone participating in it. As agreed upon by the majority of jurists, it applies to the minor boy and girl, and the insane man and woman. Al-Shafi’i, Imam Malik, and Ahmad bin Hanbal added that the virgin woman, even if she is an adult, is under the guardianship of compulsion as long as she remains a virgin; some call it "despotic guardianship" (wilayah al-istibdad).¹⁵ This is outside the scope of this study for reasons that will be explained later.

B - Guardianship of Choice/Recommendation (Wilayah al-Ikhtiyar/al-Istihbab): This is the guardianship that applies to the adult, sane, non-virgin woman (thayyib) according to the majority. Meanwhile, the Hanafis held that the adult, mature, sane woman has no guardianship over her; she concludes her marriage contract herself and with her own words. It is merely recommended that her guardian takes charge of that and be pleased with it. They replaced guardianship with two conditions that the adult, sane girl who wants to marry must observe: compatibility (kafa’ah) and the equivalent dower (mahr al-mithl). They gave the guardian the right to demand the annulment of the contract if the girl marries someone who is not compatible with her, and if the contract is for less than the equivalent dower, he may demand to raise the dower to the equivalent or else demand annulment.

This "Shared Guardianship" means the participation of the guardian and his ward in consenting to the marriage. The guardian does not act unilaterally or despotically in marrying off his ward as in the guardianship of compulsion; rather, the consent and permission of his ward are necessary. She also does not act unilaterally in the contract; rather, the guardian is the one who initiates the marriage contract for her with his words based on mutual consent between them.¹⁶ This latter "Shared Guardianship" is the subject of this study.

Second: The Jurisprudential Framework of Guardianship in the Marriage Contract and the Realization of the Locus (Tahqiq al-Manat)

Jurists, ancient and modern, have differed on the issue of guardianship in the marriage contract. This study will not dwell on the details and discussion of the various opinions and the responses between those who consider the guardian's permission a pillar or condition and those who allow the woman to directly execute the marriage contract herself. Many previous studies have addressed this, ending with the weighting of one of the two opinions over the other. This paper does not stop at this point, which has been exhaustively researched, to end by weighting one of the two opinions. Instead, the study aims to attempt to produce an analytical vision of the issue without recycling what has been previously studied and reviewed.¹⁷

Therefore, it will suffice to present a summary of those opinions as reported by Ibn Rushd the Grandson (Al-Hafid), when he stated that the cause of the difference regarding guardianship is that no verse or Sunnah has appeared that is explicit in conditioning guardianship in marriage, let alone being a definitive text (nass). Rather, the verses and traditions usually used as evidence by those who condition it are all subject to interpretation (muhtamalah). Likewise, the verses and traditions used as evidence by those who condition its removal are also subject to interpretation. The hadiths, while being linguistically ambiguous, are also debated regarding their authenticity, except for the hadith of Ibn Abbas, although the one who removes it [the condition] does not need evidence because the original state is freedom from obligation (bara’at al-dhimmah).

Then Ibn Rushd began listing the most famous arguments of those who condition it (the majority) and those who oppose them (the Hanafis). Among the most apparent arguments from the Book for those who condition guardianship is the Almighty's saying: {And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their husbands if they agree among themselves on a lawful basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not} Surah Al-Baqarah: 232. They said: This is an address to the guardians, and if they had no right to guardianship, they would not have been forbidden from preventing (‘adl). And the Almighty's saying: {And do not marry polytheistic men [to your women] until they believe} Surah Al-Baqarah: 221. They said this is also an address to the guardians. Among the most famous hadiths they used is what Al-Zuhri narrated from Urwa from Aisha , she said: The Messenger of Allah ﷺ said: "Any woman who marries without the permission of her guardian, her marriage is void, three times. And if he has entered into her, the dower is hers for what he has taken from her. And if they dispute, the Sultan is the guardian of the one who has no guardian."¹⁸

Then Ibn Rushd continues in mentioning the arguments of their opponents by saying: As for those who do not condition guardianship, they argued from the Book: the Almighty's saying: {Then there is no blame on you for what they do with themselves in a lawful manner. And Allah is Exalted in Might and Wise} Surah Al-Baqarah: 240. They said this is evidence for the permissibility of her acting in the contract on herself. They said He attributed the action to them in more than one verse of the Book, saying: "that they marry their husbands" and "until she marries a husband other than him." From the Sunnah is the hadith of Ibn Abbas , which is agreed upon as authentic, which is his saying ﷺ: "The ayyim (non-virgin) has more right to herself than her guardian, and the virgin is consulted about herself, and her permission is her silence." With this hadith, Dawud argued for the difference between the thayyib and the virgin in this sense. This is the famous evidence of both groups from the tradition.

Then Ibn Rushd concluded after presenting the various evidences of both groups and discussing them: (What is most likely is that if the Lawgiver intended to condition guardianship, He would have clarified the type of guardians, their categories, and their ranks, for delaying clarification from the time of need is not permissible. If it is not permissible for him ﷺ to delay clarification from the time of need, and the widespread nature of this issue required that the conditioning of guardianship be transmitted from him ﷺ through tawatur (mass transmission) or close to it, and yet it was not transmitted, then one of two things must be believed: either that guardianship is not a condition for the validity of the marriage and the guardians only have a supervisory role (hisbah) in that, or if it is a condition, then the distinction of the guardian's qualities, categories, and ranks is not part of its validity. Therefore, the opinion of those who invalidate the contract of the distant guardian with the presence of the closer one is weak.)¹⁹

The Hanafis have seven reports regarding the woman's independence in guardianship: two reports from Abu Hanifa: the adult, sane woman may directly execute her marriage contract and the marriage of others absolutely, although it is contrary to what is recommended, which is the apparent view of the school (zahir al-madhhab). The report of Al-Hasan from him: if she contracts with a compatible person, it is valid, and with others, it is not valid; this was chosen for the fatwa because it was mentioned that many a reality cannot be changed, and not every guardian is good at litigation and dispute, nor is every judge just. Even if the guardian is good and the judge is just, he may leave it out of pride for frequenting the doors of rulers and finding the disputes themselves burdensome, so the harm is established, and its prevention was to repel it. From Abu Yusuf there are three reports: it is not permissible absolutely if she has a guardian, then he returned to permissibility from a compatible person but not from others, then he returned to permissibility absolutely from a compatible person and others. Two reports from Muhammad: its conclusion is suspended on the guardian's approval; if he approves it, it is effective, otherwise it is void, except that if he is compatible and the guardian refuses, the judge renews the contract and does not pay attention to him, and a report of his return to the apparent report. The disagreement ended with the agreement of the three on permissibility absolutely from a compatible person and others, which is what Al-Sarakhsi mentioned.²⁰

Ibn Taymiyyah (may Allah have mercy on him) has valuable words on the issue, through which he analyzed the social dimensions in the issue of forcing a woman to marry someone she does not want according to the guardian's desire, whim, and personal interests, saying: "And if she is pleased with a man—meaning the woman—and he was compatible with her, it is obligatory for her guardian—like the brother then the uncle—to marry her to him. If he prevents her (‘adl) or refuses to marry her, the more distant guardian or the judge marries her without his permission by the agreement of scholars. It is not for the guardian to force her to marry someone she does not please, nor to prevent her from marrying someone she pleases if he is compatible by the agreement of the Imams. Only the people of Jahiliyyah and the oppressors force and prevent her, those who marry their women to whom they choose for a purpose, not for the woman's interest, and they compel her to do that, or embarrass her until she does, and they prevent her from marrying someone who is compatible with her due to enmity or purpose. This is all from the work of Jahiliyyah, oppression, and aggression, and it is what Allah and His Messenger ﷺ have forbidden, and Muslims have agreed on its prohibition. Allah has made it obligatory for the guardians of women to look into the woman's interest, not their own whims, like all other guardians and agents who act for others; they should intend the interest of the one they act for, not their own whim, for this is from the trust (amanah) that Allah commanded to be returned to its people, saying: {Indeed, Allah commands you to render trusts to their owners and when you judge between people to judge with justice}."²¹

The observer of Ibn Taymiyyah's words (may Allah have mercy on him) realizes how he understood ijtihad in the issue in light of a deep understanding of the objectives of legislation in it, and a reading of the reality of what happens by some guardians and their being affected by various psychological and social factors. Then he favored preserving the interest of the woman and the family—for it is the basis—through emphasizing the value of mutual consent in marriage, and the necessity of building the family on a basis of understanding and consultation, not compulsion by some guardians for personal interests. He also added a piercing understanding of the attribute of trust (amanah) that the guardian should possess. That attribute which, if absent or lacking, strips him of the guardianship and its performance... all this in the context of a realistic, Maqasidi jurisprudential reading that addresses the issue in its family and social dimension.

As for Ibn Qayyim al-Jawziyyah, he concluded after presenting the evidence for both groups—in the context of mentioning the rulings and judgments of the Prophet ﷺ in marriage and its consequences—that: (The requirement of this ruling is that the adult virgin is not forced into marriage, and she is not married except with her consent. This is the opinion of the majority of the Salaf, and the school of Abu Hanifa and Ahmad in one of the reports from him, and it is the opinion we follow before Allah and believe in no other. It is consistent with the judgment of the Messenger of Allah ﷺ, his command, his prohibition, the rules of his Sharia, and the interests of his Ummah. As for its consistency with his judgment, he judged by giving the choice to the hating virgin, and the narration of this hadith is not defective by being mursal (interrupted), for it has been narrated both musnad (connected) and mursal. If we say with the words of the jurists: that connection is an addition, and the one who connects it takes precedence over the one who sends it, then it is apparent, and this is their practice in most hadiths. So why did this one deviate from the ruling of its likes? And if we judge by the mursal as many hadith scholars say, then this is a strong mursal supported by authentic and explicit reports, analogy, and the rules of Sharia as we will mention, so it is necessary to follow it. As for the consistency of this opinion with his command, he said: 'And the virgin is consulted,' and this is an emphatic command because it came in the form of a report indicating the realization, establishment, and necessity of the reported matter. The original rule in his ﷺ commands is that they are for obligation unless a consensus is established to the contrary. As for its consistency with his prohibition, it is his saying: 'The virgin shall not be married until she is consulted,' so there is a command, a prohibition, and a judgment of choice, and this is the establishment of the ruling by the most eloquent ways. As for its consistency with the rules of his Sharia, the adult, sane, mature virgin—her father cannot dispose of the smallest thing of her property except with her consent, nor can he force her to give out a small part of it without her consent. So how is it permissible for him to enslave her and take her person from her without her consent to whomever he wants, while she is among the most hating of people towards him and he is among the most hateful things to her? Yet, he marries her to him by force without her consent to whomever he wants, and makes her a captive with him, as the Prophet ﷺ said: 'Fear Allah regarding women, for they are ‘awan (captives) with you,' meaning prisoners. It is known that giving out all her property without her consent is easier for her than marrying her to someone she does not choose without her consent. And he who said: if she appointed a compatible person she loves, and her father appointed another compatible person, the consideration is for his appointment, even if he is hateful to her and ugly in appearance, has invalidated [the truth]. As for its consistency with the interests of the Ummah, the interest of the daughter in marrying someone she chooses and is pleased with, and the realization of the purposes of marriage for her through him, and the occurrence of the opposite of that with someone she hates and flees from, is not hidden. Even if the explicit Sunnah did not come with this opinion, sound analogy and the rules of Sharia would not require anything else, and with Allah is success.)

Then he says: (And consider his ﷺ saying: 'And the virgin is consulted by her father' following his saying: 'The ayyim has more right to herself than her guardian,' to cut off the illusion of this opinion, and that the virgin is married without her consent or permission, so she has no right to herself at all. So he connected one of the two sentences to the other to repel this illusion. It is known that the fact that the thayyib has more right to herself than her guardian does not necessitate that the virgin has no right to herself at all.)²²

Reflecting on his (may Allah have mercy on him) words, his insight is clear in understanding the objectives of Sharia in marriage being based on consent and acceptance, and that the interest that should be favored begins with looking into the interest of the girl. From here, the reason for the establishment of guardianship is absolute kinship because it carries compassion for the relative and calls for it.²³ His rejection of the idea of compulsion in marriage is also clear, as it contradicts the objectives of legislation in it and violates the rules of Sharia and the interest that it considered in all its other rulings.

Some contemporary scholars have also pointed to the issue of the authority of custom (sultan al-‘urf) which may control the guardian's decision, pushing him to despotism in making a decision that contradicts the girl's interest due to the authoritarianism of the governing customs: "It is not far-fetched to understand from the Almighty's saying: {do not prevent them from remarrying their husbands} the opposite of what the majority went to, which is that the guardians have no 'right' to guardianship over the marriage contract of their wards. Thus, the prohibition here is a decisive legislative opposition to what was prevalent of the Jahili custom that used to grant the agnate guardians the authority to control the marriage and fate of their wards, such that the guardian prevents the woman from marrying someone she is pleased with and chooses, even if he is compatible, preventing them according to his desire and whim, with custom supporting him, without there being a reasonable cause for that other than pride, arrogance, and taking pride in sin. He may force her to marry someone she hates for an interest returning to him, not to his ward in reality. Islam uprooted this 'unjust custom' from its roots with this general binding legislation in which the address is directed to Muslims in general, forbidding that there be among them 'prevention' (‘adl) or 'blocking' of women from marrying those they desire to marry among men. This meaning is reinforced by attributing the marriage to them, not specifically to their guardians, in the Almighty's saying: {do not prevent them from remarrying their husbands if they agree among themselves}. The original rule in attribution—as we indicated—is that it be to the real actor. Thus, Islam uprooted with this general binding legislation—as we indicated—what was 'familiar' in Jahiliyyah, or a dominant custom prevalent among them, of the guardians' control over their wards and restricting them from directly executing their marriage contract themselves with those they are pleased with and choose from the compatible ones."²⁴

Custom, environmental projections, and incorrect social upbringing factors (of some guardians) far from the objectives of legislation can play a dangerous role in the issue of failing the functions of guardianship such as care and preserving the interest of the woman and the family. Here comes the role of the mujtahid to understand these situational meanings and address them with the reality of applying the Sharia ruling based on rationalizing human reality and the custom that contradicts the teachings of Islam with all wisdom and insight. Hence, the discussion in this paper is about "Shared Guardianship" considering all the aforementioned matters that show that what is meant by guardianship is a partnership between the guardian and the woman, not compulsion. We may ask after this presentation of some scholars' jurisprudential opinions on the issue: how should shared guardianship or partnership in the marriage contract be viewed today? And what are the developments that require mujtahids and researchers today to deal with this and similar issues related to women?

Third: The Realistic Framework in Addressing the Issue of Guardianship

It is difficult for an observer of any issue related to the status of women to read the reality of all Muslim societies and other societies where a number of Muslims live through a monolithic view—one that excludes or drops from its calculations the change in the relationship of many Muslims with the rulings of their religion and the nature of their realistic practices, and the influence of the nature of their environments and societies on all of that. The reality of women in some Muslim societies is governed by customs and traditions that have lost their historical legitimacy at the expense of the values and principles that Islam came to establish and anchor. What calls for attention is that those customs are practiced and imposed on women in the name of religion and Sharia.²⁵ Here, confusion and mixing occur between the rulings of religion on one hand and the customs of people on the other, and there is no longer a clear difference between them: religion is custom and custom is religion!

The gap has widened between social traditions and customs on one hand, and the original teachings of Islam represented in the texts of the Holy Quran, the Sunnah, and the practices of the Prophetic and Rightly Guided eras on the other. Here, defensive writings appeared that played their role as protective covers for social traditions and customs that Islam came essentially to refine, rationalize, and reform. Those writings considered that preserving these traditions was like preserving the remaining elements of the Islamic identity threatened with loss. Especially since the incoming current used the weapon of attacking those traditions and customs as part of the teachings of religion, and completely ignored—unintentionally or intentionally—the vast gap between religion and the prevailing traditions and customs. The process of justifying this unjust reality and worn-out customs is something that Sharia, reason, and reality do not approve of, and it will not contribute to changing or improving the status of women in such societies.

Many manifestations of injustice and humiliation still occur to women in our societies in the name of religion, through some people's understanding of it in a fragmented way—a "mincing methodology"—that contradicts its general origins and principles. The process of changing and reforming those customs cannot succeed except through recognizing human existence and reality, and applying the logic of the Holy Quran and the authentic Prophetic Sunnah to the reality of our societies and reforming them according to their general demands and objectives. Many of the manifestations of injustice and prejudice that befell women in Muslim societies were of the nature of strange customs alien to the Muslim society, or due to Muslims' misunderstanding and misapplication of many texts of the Holy Quran and the Sunnah.²⁶

The issue of guardianship in the marriage contract and others has been taken as an indicator of the backwardness that the status of the Muslim woman has reached in Muslim societies. In fact, the matter was not due to the teachings of the Islamic religion, but rather due to some people's misunderstanding and misinterpretation of the teachings of religion and the accumulations resulting from that. Here, another reality for women appears in some societies that is no less dangerous than the first, which came in the form of reactions and sometimes attacks, demanding the equality of women to men in all fields according to the Western pattern exclusively. It came with the accusation of the Islamic religion and its teachings of consolidating the idea of "patriarchy"²⁷ which, in its origin in the West, played a role antagonistic to the Church and its men.²⁸ The call for equality in the Western sense is a vicious circle whose dimensions were not realized by those who called for it and adopted it in the midst of Muslim societies today.²⁹

Dr. Abu Suleiman says in the context of describing this reality: "It is unfortunate that many writers among the sons of the Islamic Ummah—due to the pollution of the Ummah's culture and the distortion of its beliefs—have begun to turn their faces towards the West and its lifestyle and its material, social, and moral relationships that have no reference except the whim of the soul. Among the most important issues of this dependency is dependency regarding the family, despite what they see of the disintegration of the Western family and the dangerous deviations that destroy it. Even Fukuyama, one of the great thinkers of the West who issued the book 'The End of History,' we find him issuing another book, 'Human Capital,' in which he warns and cautions how the American family has collapsed. Even the boy has begun to kill himself and kill others, and violence in society is growing and increasing dangerously, and the need to import immigrants to carry the burden of the elderly has increased due to the decrease in births. If the thinker examines the source of these increasing social and moral diseases, he finds it in the Westerners' belief that the male and female are identical and not complementary, meaning that the difference between the sexes, male and female, is merely a futility in creation."³⁰

For a long time, most of the literature and writings related to women have revolved around similar issues that do not go beyond the testimony of women, her share in inheritance, her assuming the judiciary, her participation in public and political works specifically, guardianship... among other matters that have attracted and still attract the efforts and pens of many Muslim researchers and Orientalists. Most of the literature that addressed these issues did not go beyond the angles of comparisons, approaches, and the literature of defense and justification for Islam's viewpoint in them, focusing on the position of women in Islam and her rights, and the volume of sudden scientific and cultural changes to manage the helm of dialogue around them anew, desiring to bring viewpoints closer and increase the clarification of the status of women in Islam, and attempting to repel the flood of suspicions raised about her by many.

The practices far from the teachings of religion (which a number of women's guardians fall into) were an easy entry point for challenging the credibility and legitimacy of those teachings without the slightest distinction or differentiation between custom and religion, and between teachings and application. Those abuses became an eyewitness to Islam's humiliation of women, its waste of her humanity and rights, and its imposition of guardianship over her. Al-Siba’i (may Allah have mercy on him) says in that: "Traditions in our society—especially in the countryside—still almost strip the girl of her freedom in choosing a husband, and most likely he whom the father wants or the mother is pleased with is imposed on her. In her reality as a virgin girl, she is shy to express her opinion, and in the reality of the society in which she lives, she has no right to object to the will of her father and guardians. Marriage has often failed in such cases, dragging behind it many tragedies."³¹

From here, we find that the Muslim woman today stands between two realities: the first represents a loathsome response to the challenges of global developments in the new world order politically, in globalization intellectually and culturally, in organizing global trade economically and industrially, and in the information and communications revolution with all the previous dimensions. It appeared in adopting the call for equality of sameness and identity.³² This resulted in continuous confusion and lack of distinction between the practices of some Muslims and the propositions of some Muslim writers and between the values of Islam and its teachings derived from the texts of the Holy Quran and authentic hadiths. Many female figures have pointed to religion as being responsible for the deterioration of women's conditions in the Arab-Islamic world. Some contemporary writers have emphasized that Islam is one of the factors of women's backwardness and her lack of contribution to development through the isolation and hijab it imposes on women, making the woman in a "ghetto"—as she says—within the family.³³ Also, the patriarchal system and religion as part of it caused the oppression of women and the reduction of her participation.³⁴

The second represents customs and traditions far from the teachings of the pure Sharia that imposed on women a kind of intellectual and social isolation and prevented her from performing her obligatory civilizational role. Complying with either of these two trends in one way or another leads to confusion in methodologies far from the rulings of Sharia and its principles. Hence, it is imperative to attempt to derive an original methodology that interrogates the texts of the Holy Quran and the Sunnah, invokes the objectives of Sharia, and inspires the understanding of reality, its crises, requirements, and the consequences of the decisions taken. Also, the need is confirmed today to study all those variables and developments on various levels, comprehend them, distinguish them, and provide theoretical conceptions and practical solutions to invest in their positives, sound methodological flexibility with their requirements, and defense and treatment of their negatives.

There is a reality witnessed by some societies where the phenomenon of guardians' greed for the girl's salary emerges, which pushes him to prevent the girl from marrying (‘adl). Ibn Taymiyyah (may Allah have mercy on him)—with what we previously mentioned of his saying—pointed to this and the necessity of the guardian's trust in verifying the woman's interest and observing it in guardianship, not his own interest and whim: (And Allah made it obligatory for the guardians of women to look into the woman's interest, not their own whims, like all other guardians and agents... he should not intend his whim, for this is from the trust that Allah commanded to be returned to its people). The negative effects resulting from that are not hidden, most notably the phenomenon of spinsterhood and its increase in most Arab societies.³⁵ Also, there are phenomena in some societies that the mujtahid must understand and stand upon before going to this opinion or that, such as the issue of "customary marriage" (zawaj ‘urfi).³⁶ Dangerous statistics have revealed an alarming increase in the rate of customary marriage in some societies, which is something based on the woman's unilateral direct execution of the marriage contract and adhering to the form of the marriage contract, not ensuring its validity and observing the realization of the objectives of legislation in it, far from the knowledge of the guardians and the family.³⁷ It has been noted in those societies that the spread of this phenomenon is not limited to the uneducated but some have gone to say that it is more widespread among the educated.³⁸ This indicates that the issue of guardianship in the marriage contract is linked to the family system and the network of social relations much more than its dependence on the girl's level and her educational attainment and the like. A study by the National Center for Social and Criminological Research in an Arab country confirmed this, showing the absence of the family's role and its effect on the spread of that phenomenon.³⁹ The danger of the matter reached the point that some contemporary scholars called for the criminalization of this type of marriage.⁴⁰

Fourth: The Maqasidi and Consequential Framework in Guardianship

The Lawgiver has noted wisdoms and known objectives in all states of legislation or most of them, including the issue of shared guardianship. While previous scholars were alert to the necessity of looking into the consequences of actions and fatwas, this necessity today is increasingly confirmed in light of the climate in which Muslims live of rapid developments and evolutions. Here, contemporary mujtahids must look into the consequences of what they issue fatwas to people on and how it is applied. One should not rush according to looking at one angle in the issue until it is done by knowing what the opinion in the issue may lead to of harms or interests, and based on that, the judgment is made.

Al-Shatibi (may Allah have mercy on him) says in that: "Looking into the consequences of actions is considered and intended by Sharia, whether the actions are compliant or non-compliant. That is because the mujtahid does not judge an action issued by the mukallafin with proceeding or refraining except after his looking into what that action leads to. It may be legislated for an interest in it to be brought or for a corruption to be repelled, but it has a consequence contrary to what was intended in it. And it may be non-legislated for a corruption arising from it or an interest repelled by it, but it has a consequence contrary to that. If the word is released in the first with permissibility, it may lead to the bringing of the interest in it to a corruption equal to the interest or greater than it, so this would be a preventer from releasing the word with permissibility. Likewise, if the word is released in the second with non-permissibility, it may lead to the repelling of the corruption to a corruption equal or greater, so it is not correct to release the word with non-permissibility. It is a field for the mujtahid with a difficult source but it is sweet in taste, praised in outcome, running according to the objectives of Sharia."⁴¹

There is a link here between ensuring the consequences of the ruling or weighting in the issue of guardianship and realizing the objectives for which guardianship was legislated. This requires mujtahids to recognize the ruling and meanings in the issue being researched, as well as verifying the extents of activating and fulfilling those meanings in the lived reality. There is no doubt that Sharia prevented coercion and compulsion in the occurrence of the link between man and woman because of its explicit contradiction to the objectives of legislation in marriage and the confiscation of the woman's freedom of choice. It is not hidden from anyone what can result from initiating such a type of link of negative effects not limited to psychological problems that reflect on the children and undermine the entity of the family and what should be built on of tranquility, mercy, and affection for all family members, in addition to what Sharia observed in all its rulings for human feelings.

Also, the objective of emphasizing the social educational nature of the family appears. It is inconceivable to research the subject of guardianship in isolation from understanding the Maqasidi formation of the family, not on an individual basis that looks at the woman as an individual but as an individual belonging to a family and a small group represented in her family on one hand and considering her belonging to a large group represented in society and the Ummah. Allah Almighty says: {The believing men and believing women are awliya (allies/protectors) of one another. They enjoin what is right and forbid what is wrong} [At-Tawbah: 71]. The woman and the man in the concept of Islam's message protect each other, an ideological loyalty, they reform society, fight corruption, crime, and decadence, and carry the message of goodness, peace, and construction on earth through all networks of family and social relations.

It is necessary to emphasize attention to the nature of life within the family to ensure the establishment of sound social relationships whose basis is securing basic needs in their emotional and material forms for all its members, male and female, through the process of family upbringing and its diverse methods. These social methods serve as educational guides that determine the behavioral patterns of its members. Here, the importance of using the method of consultation emerges, so parents deal with their children based on dialogue and understanding in their upbringing and then building their personalities and their psychological and social compatibility while moving away from the method of cruelty and severity in parents' dealing with children, which naturally generates disintegration within the family and then appears in multiple forms, including the desire to rebel against what the children perceive as guardianship and oppression by the parents. Here the mujtahid needs to invoke these concepts when dealing with the issue of guardianship and attempts to understand its effects and family and social dimensions and its role in shaping individuals' relationships with each other, with the necessity of ensuring the extent of achieving and realizing those goals and purposes in the reality of the individual and the group, considering that the final ultimate objective of all the Lawgiver's legislations is to realize the interests of the servants.

The importance of the mujtahid's understanding of the objectives of guardianship in the marriage contract also appears, and not limiting them to specific descriptions that do not reflect the interest of Islamic legislations in the dimensions of family functions and their effects on individuals and society. Ibn Taymiyyah (may Allah have mercy on him) says in the context of talking about investigating the cause (‘illah) in the issue of guardianship in the marriage contract: (As for making virginity a cause for restriction (hajr), this is contrary to the principles of Islam, for the Lawgiver did not make virginity a cause for restriction in any of the agreed-upon places. Thus, reasoning the restriction with that is reasoning with an attribute that has no effect in Sharia. Also, those who said with compulsion were confused when she appointed a compatible person and the father appointed another compatible person: is her appointment taken or the father's appointment? On two views in the school of Al-Shafi’i and Ahmad. Whoever made the consideration for her appointment contradicted his principle, and whoever made the consideration for the father's appointment—in his word is corruption, harm, and evil that is not hidden. And the Prophet ﷺ differentiated between the virgin and the thayyib, as he said in the hadith: "The virgin shall not be married until she is consulted, nor the thayyib until she is commanded." He mentioned in this the word "permission" and in this the word "command," and made the permission of this one silence as the permission of that one is speech. These are the two differences with which the Prophet ﷺ differentiated, and he did not differentiate between them in compulsion and non-compulsion. The guardian is commanded by the thayyib, and seeks permission from the virgin. This is what the words of the Prophet ﷺ indicated. As for marrying her off while she hates the marriage, this is contrary to principles and reason. Allah did not permit her guardian to force her into a sale or lease except with her permission, nor into food, drink, or clothing she does not want. So how can he force her into sexual intercourse and cohabitation with someone whose intercourse and cohabitation she hates? Allah has made between the spouses affection and mercy; if it is only obtained with her hatred for him and her aversion to him, then what affection and mercy is in that?)⁴²

Many scholars have noted those objectives in guardianship and emphasized them within the family system, and they are what should be paid attention to in addressing the issue. Sheikh Muhammad al-Tahir ibn Ashur points to the objectives of help, keenness, and care in guardianship in marriage which should not be cut off after marriage by saying: "It is obligatory that a specific guardian for the woman takes charge of her contract, if he exists, or a general one, to show that the woman did not take charge of leaning towards the man alone without the knowledge of her family, because that is the first of the differences between marriage and adultery, deception, prostitution, and... seeking offspring (istibda’), for guardians are not pleased with her in the custom of people prevailing over them, and because the guardian's taking charge of his ward's contract prepares him to be a help in guarding her state and her custody, and that his clan and supporters or his followers and chosen ones be a help to him in defending that."⁴³ Guardianship based on care, love, help, and protection forms a system of family values that is not cut off from the girl after her departure from the family home to the marital home; rather, it continues to create the extended family atmosphere unique in its kind in the Muslim society. Then, guardianship cannot be understood as a legislation for authoritarianism or male oppression over women.

Dr. Omar al-Ashqar confirms these objectives and adds to them the objective of interest in the network of social relations, where he distinguishes between guardianship due to lack of capacity and guardianship as a kind of family function intended to preserve the woman and family relations, saying: "Guardianship over minors and the insane was legislated because they are not fit to dispose of their affairs, so they need someone to perform their interests, including marriage. As for guardianship over the adult, sane woman, the purpose of it is not to oppress the woman, humiliate her, and control her; rather, behind that are many wisdoms, including: protecting the woman from what suggests her impudence, recklessness, and her inclination towards men. The woman finds embarrassment in directly executing that, and her modesty—and she was created with modesty—prevents her from that. Also, men are more capable of researching the suitor's conditions than women. If the woman were left alone to decide her fate without help from her family and relatives, she might not be successful in choosing the suitable man. Conditioning the guardian has more announcement of the marriage, and Sharia calls for announcing and publicizing the marriage; for that, the guardian, witnesses, the feast, and congratulations were legislated. The woman's link with the man she chooses is not a private matter for the woman alone; marriage links families and creates a network of relations. Fathers and brothers care that the family they are linked with be on a level of virtue and character. The woman's link with the righteous husband relieves her family, and her stumbling in her marital life worries and tires them. The guardians are hit by hardship and affliction if the woman is not successful in her marriage, and they will fall into a greater and harder affliction if the discord between the woman and her husband reaches divorce and she returns to them carrying a fetus in her womb and holding her children in her hand. Will the liability be on them while they do not participate in a decision that has reflections on all their lives!"⁴⁴

With all that consideration for the objectives of Sharia in guardianship of care, protection, and the like, it should not lead to encouraging the path of stripping the will and besieging it. Preserving those objectives and the cohesion in the network of family relations between family members represented in the guardian and the woman should not become an invitation to strip the woman of her freedom in choosing a husband and its confiscation and the authoritarianism of some guardians and favoring their material interests over the woman's interest. Many previous scholars realized these differences. Al-Izz bin Abd al-Salam says in his Qawa’id: "Everyone who takes charge of the affair of another, whether this affair is public or private, it is obligatory for him to act in what contains the benefit of those under his hand; rather, his action is not valid unless it includes bringing an interest or repelling a corruption." Then he says: "And he does not limit himself to the good with the ability for the better unless it leads to severe hardship. And the rule of Sharia is that in every place and every guardianship, the one who is more upright in its interests is put forward."⁴⁵

The guardian who is keen on his interest and pays no attention to his ward's interest—it is appropriate that the right of guardianship be taken from him even if he is a father, and assigned to other guardians according to their order. If they are lost or were of the same rank, then to the judge of the Muslims as the jurists stated.⁴⁶ By this, the claim of those who claim that guardianship is absolute authoritarianism and that it is against the interest of the ward, among other things said in this field, is negated. We have seen the tough conditions that the jurists conditioned in the guardian which ensure the safety of his action in what achieves the benefit for the ward and protects her from evils and corruptions.⁴⁷

The idea of conflict between the man (represented in the guardian) and the woman (represented in the girl) is an idea alien to the Muslim society; guardianship does not mean patriarchy. Consequently, the nature of the view influenced by the Western idea differs from the reality of the matter not only in guardianship but in the nature of the governing family relations in Islam. Capitalism active in the reality of the West is based on the individualism of the human being and expanding it at the expense of the family and the group, until it left him the freedom to act in many matters to the point of harming himself and harming others under the veil of personal freedom. From here began the idea of social conflict which sees that the family institution is the first oppressive institution the individual experiences in their social life, where the man's control over the woman in the family system represents the most dangerous examples presented by the conflict theory. Until the sixties of the twentieth century, the woman in the American and European system was not legally capable of participating in initiating any of the commercial contracts without her husband's permission. In the half of the same century, the state of violence between husband and wife in American society reached a degree such that the family institution was placed at the top of American social institutions that practice violence and crime. It is a matter of extreme danger when the rulings of the family and social relations in Islam are read and reviewed in the framework of being influenced by it.

However, it is necessary to emphasize the distance of many fathers from the teachings and methods of Islamic upbringing for their children, which resulted in many cases in practices closer to arbitrariness and oppression that the teachings of Sharia forbade and fought. Many psychological and social studies that addressed family relations confirmed that the most important factors in acquiring values and attitudes are the result of parents' practice of their roles within the family. The father's authoritarianism and arbitrariness may lead to the formation of a view of the world centered on oppression and arbitrariness, and this view is translated behaviorally into fanaticism, closed thinking, and adhering to customs and traditions blindly, leading the children to acquire authoritarian personalities that do not accept criticism or objection, or even mere consultation and exchange of opinions. This is what was confirmed by some psychological and social studies that went to say that among the most dangerous things facing some youth is the nature of patriarchal authority resulting from poor social relations between parents and children.⁴⁹ This inevitably reflects on the family's functions and responsibilities and the emergence of authoritarian behaviors by some guardians.

However, those dangerous symptoms cannot be treated with more deviation based on consolidating the principle of individualism and conflict because of the catastrophic risks it entails for the network of social relations and for the Ummah as a whole. It is necessary to pay attention to the Lawgiver's objective in shared guardianship in achieving the preservation of the family structure and its extended role. Any defect in achieving harmony in the family warns of the danger of disintegration and dissolution. Professor Malik bin Nabi says in that: "Before the society dissolves completely, the disease occupies its social body in the form of separations in its social network... and this pathological state may continue a little or a lot, before reaching its end in the form of total dissolution. That is the stage of slow dissolution that runs in the social body. However, all the causes of this dissolution are latent in the network of relations. The society may appear in its exterior prosperous and growing, while its network of relations is sick. This social disease is manifested in the relations between individuals. The greatest evidence of its existence is represented in what hits the 'ego' in the individual of 'inflation' that ends in the dissolution of the social body in favor of individualism, when the 'person' disappears or especially when the 'individual' recovers their independence and authority inside the social body. Social relations are corrupt when the selves are hit by inflation, so collective common work becomes difficult or impossible, as the discussion then revolves not to find solutions to problems, but to find evidence and proofs. In the state of health, the addressing of problems is for the sake of treating them, but in the pathological state, addressing them becomes an opportunity for the 'self' to swell and puff up, and then their solution is impossible, not for a poverty in ideas or in things, but because the network of relations no longer runs its affairs on its nature."⁴⁹

Accordingly, we can understand the danger of excluding the social family educational aspect when addressing guardianship in marriage. Guardianship does not begin when the guardian represented in the father (for example) directly executes the marriage contract; rather, it is a brick and a stage in the formative construction of the system of family and social relations. From here came the role of the family (which in Sharia was installed as the guardian representing it) in a matter like marriage, and the woman as an individual has a clear interest in such a matter that her role cannot be absented nor her emotional need (no matter her educational and cultural level) for that. Professor Abu Shuqqa says in the context of understanding the family's role in the marriage decision: "And the obligation of the guardian's permission or its recommendation contains more care for the young man and the young woman from a person with experience who is beside them at the hour of establishing a new small family. Care does not mean canceling the will of the young man and the young woman and their choice; rather, it means rationalization and consultation."⁵⁰

The marriage decision is a final outcome of a family agreement based on consultation with all concerned family members represented in the guardian who cannot in any case force the woman into marriage, for contracts are based on consent. Practicing consultation in the family is a matter of extreme importance, to be withdrawn and its effect extended to the various social and political activities of individuals in the Ummah's institutions. From here, the danger of canceling it is not limited to a personal side. We can imagine the consequences of the failure of consultation in the family environment on the society and the Ummah as a whole. If individuals are unable to address their problems within their family institution, how can they address others in the circles of society and the different rings of the Ummah! Malik bin Nabi says under the title "Social Disease": "And when the tension in the threads of the network relaxes and it becomes unable to perform common activity effectively, that is a sign that the society is sick and that it is going to its end."⁵¹

From here it becomes clear that the Lawgiver's objective in guardianship did not accuse the woman in her abilities, experiences, capacity, or expertise—as some imagine—as much as the matter is linked to preserving the network of social relations within the family institution which represents in its reality a miniature model of the Ummah, and the effect of that on the woman's family and social position. Professor Abu Shuqqa says in this context: "The presence of the guardian at the marriage contract, as it proves the family's approval of this marriage, helps to confirm that the marriage bond is not limited to an intimate relationship between two people, a man and a woman, but it is also a close link between two families or two clans. Just as the woman's guardian attends, it is recommended for the man's father to attend as well as the relatives of the spouses, so that this marriage is the beginning of a fusion between the two families."⁵²

Here, the responsibility falls on the contemporary mujtahid to investigate and track the social and psychological causes latent behind the manifestations of the desire of some women (in some societies) to bypass their guardians in the matter of marriage in the usual case where no abuse of action by their guardians is proven.⁵³ Marriage has multiple objectives for the woman, the man, the family, and the society as a whole. To achieve them in the most perfect way, the presence of the guardian and his direct execution of the contract is the closest to achieving those objectives; therefore, it is conditioned in the guardian that he be fit to practice this task.⁵⁴

If guardianship is love, proximity, friendship, and support linguistically, then it is noted that these meanings are realized in the reality of people as objectives for the contents of the words. If it is enmity, aversion, and abandonment, then this is not guardianship. The purpose of the guardian is to be in his guardianship agreeing with the love of the one he protects if what he went to was reasonable and sound, so he hastens in his support, backs him, and is close to him. From here, it was necessary to ensure the realization of these meanings in the guardian through his understanding of his role and responsibilities. If the opposite appears, it is better to transfer the guardianship to someone who is more righteous and more apparent in trust than him before starting to raise the matter and taking it out of the framework of the family and clan to the framework of the judiciary. The family is the cradle in which individuals should solve their family disputes in its environment, and the judiciary is not resorted to except in special exceptional circumstances.

Ibn Taymiyyah (may Allah have mercy on him) says in that: "And if she is pleased with a man—meaning the woman—and he was compatible with her, it is obligatory for her guardian—like the brother then the uncle—to marry her to him. If he prevents her or refuses to marry her, the more distant guardian or the judge marries her without his permission by the agreement of scholars. It is not for the guardian to force her to marry someone she does not please, nor to prevent her from marrying someone she pleases if he is compatible by the agreement of the Imams. Only the people of Jahiliyyah and the oppressors force and prevent her... and Allah made it obligatory for the guardians of women to look into the woman's interest, not their own whims... for this is from the trust that Allah commanded to be returned to its people."⁵⁵

The role of the guardian and the family is care and embracing the new marriage and guiding it and intervening when necessary to reconcile between them and other things that social reality witnesses a dire need for. Perhaps the woman is in more need than the man for this care, especially when problems occur.⁵⁶ This points to the necessity of keeping guardianship in marriage within the family framework as much as possible. The Lawgiver made reconciliation by the two arbiters a solution before the dispute between the spouses worsens and is raised to the judiciary to preserve the family's functions and protect it from disintegration and tearing. This confirms that guardianship is a social function; if arbitrariness occurs in its use by the guardian in a way that contradicts its objectives in realizing the interest and bringing it or repelling corruption from the woman and the family, or exceptional circumstances required its restriction, then Sharia here gave the field to restrict it, rather to refer it to another guardian more trustworthy even if he was more distant to realize the locus of the ruling in guardianship and its objectives, and considering all that and its consequences.

Here the problem can be addressed in case of a dispute between the guardian and the woman, so the issue is referred to another guardian within the scope of the family and clan and is not raised to the judiciary directly. If all that is impossible (within exceptional circumstances) and the disputing parties are unable to solve family disputes in this context and the matter warns of family chaos, the matter is raised to the judiciary for the woman to directly execute the contract herself with the emphasis on the necessity of informing the guardians and ensuring that. Thus, the greater harm is removed by the lesser harm. Thus it becomes clear that the matter has no relation to the reduction of the woman's capacity or undermining her or wasting her freedom or similar matters raised outside the place of the objectives of guardianship. So let the contemporary mujtahid not fall into revolving in the orbit of approaches, defense, and justifications.

Also, it is known that not every relative of the woman is fit to perform this role, but he who possesses the set of considered conditions, the most important of which is that the guardian's action be beneficial to the woman, not harmful to her. The guardian's actions are linked to the condition of interest for the ward because it was for her interest that it was obligated and not for the guardian's interest; it is a blessing for the ward and a responsibility for the guardian. If the guardian acts contrary to the ward's interest, he is a transgressor. The aspects of interest and its conditions differ according to the type of action, so the ruling differs accordingly, just as it differs according to the degree of the guardian's proximity or distance. Al-Bahuti (may Allah have mercy on him) said: "Because the basis of guardianship is on compassion and consideration, and that is considered by its likely place, which is kinship."⁵⁷ If the closest prevents, or is not fit, or is absent in a distant absence that cannot be cut except with trouble and hardship, the more distant marries her off.

From here, there are conditions placed on the guardian; if one of them is lacking, his guardianship falls and is transferred to the one after him in degree. Among those: full capacity, by reason, puberty, and maturity, because the minor, whether discerning or not, as well as the insane, the demented, and the foolish—none of them has guardianship over themselves, so it is more appropriate that they do not have guardianship over others. This condition is agreed upon by jurists, and Ibn Taymiyyah added the condition of trust as previously mentioned, which is of extreme importance to ensure the realization of interest for all parties and negates the reservation of whoever saw a reduction in the matter.

There are matters that must be emphasized in the context of our presentation of this shared guardianship within the previous conditions mentioned:

The necessity of observing the differences and balancing between the states of societies before following in support of this jurisprudential opinion or that. The need here is dire for two levels of jurisprudence: a Sharia jurisprudence based on the jurisprudence of texts and their objectives, and a realistic jurisprudence based on studying the lived reality—a study that comprehends all aspects of the topics raised and relies on the most correct information and the most accurate data and statistics, especially regarding how to measure and balance between the interests and corruptions resulting from different jurisprudential ijtihads. The jurisprudence of Sharia and the jurisprudence of reality must complement each other so that sound scientific balancing can be reached, far from extremism and negligence.⁵⁸ From here, the observer of new cases (nawazil) when making ijtihad should observe the change in reality surrounding the case, whether it is a temporal or spatial change or a change in conditions and circumstances. The observer, accordingly, must observe this change in their fatwa and judgment. That is because many ijtihadic Sharia rulings are affected by the change of temporal and environmental situations and conditions; rulings are a regulation necessitated by Sharia aiming to establish justice, bring interests, and repel corruptions. They are closely linked to temporal situations and means and to general morals. How many a ruling was a successful arrangement or treatment for an environment in a specific time, then became after a generation or generations not leading to the purpose intended from it, or became leading to its opposite by the change of situations, means, and morals. The observer of the contemporary woman's reality notes the changes that have occurred in her life and the shift that has hit her current reality. Stagnating on fatwas that occurred in a time whose state has changed without changing this fatwa is a mistake against Sharia and a transgression against its suitability for every time and place. For this reason, later jurists from various schools of jurisprudence issued fatwas in many issues contrary to what the Imams of their schools and their early jurists issued, and these later ones stated that the cause of the difference of their fatwas from those who preceded them is the difference of time and the corruption of morals in societies. They are not in reality opposing the previous jurists of their schools; rather, if the early Imams were found in the era of the later ones and lived through the difference of time and the conditions of people, they would have turned to what the later ones said.⁵⁹

However, it is necessary to be alert in this context as well to the danger of following the principles of "Ethical Relativism" which sees that the correctness of any action or judgment is only relative to the circumstances or situations in which the action took place. It is a philosophy that refers the basic differences between values and moral principles among individuals to the differences of the cultural frameworks and traditions from which these individuals derive their moral values and traditions. A thing may be wrong or right if it is so for others; if the society that the person follows considers a specific action in specific circumstances wrong, then the person in it must not perform this action. Individuals must adapt and follow the values of their societies; in other words, the society is the ruling legislator.⁶⁰
The necessity of paying attention to considering the factors of time, environment, and individuals in applying family jurisprudential rulings and others. Mujtahids understood this consideration and balancing when they were applying the ruling of the Book and Sunnah to the circumstances of their environments, time, and place. The reality that the mujtahid observes during application includes the customs of people, their habits, and their stable systems of life in their transactions. Accordingly, custom (‘urf), presumption of continuity (istishab), and other sources of ijtihad were used according to the conditions known among them.⁶¹ Studying reality and recognizing it before the mujtahid expresses his opinion in balancing between one action and another is considered a necessity. The mujtahid must distinguish between the level of fixed reality represented in Allah's laws in the universe, souls, and horizons, and the changing reality represented in people's customs, environments, and their conditions shifting from one place to another and the interests and corruptions resulting from ijtihadic rulings and the like. This is what the mujtahid Imams observed in issuing their rulings on changing events. As Ibn Abidin says in the treatise Nashr al-‘Urf: "Many rulings differ with the difference of time due to the change of the custom of its people or for the occurrence of a necessity, or for the corruption of the people of the time such that if the ruling remained as it was first, it would necessitate hardship and harm to people, and would contradict the rules of Sharia based on mitigation, ease, and repelling harm and corruption. Therefore, we see the sheikhs of the school contradicted what the mujtahid stated in many places he built on what was in his time because of their knowledge that if he were in their time, he would have said what they said, taking from the rules of his school."⁶² The

Dr. Ruqaia Al-Alwani

Partnership Guardianship in Marriage