Guardianship: authority and
responsibility
The revelation permitting physical disciplining of
wives is one of the justifications jurists gave for
granting men in their various capacities certain
kinds of legal authority and coercive power over
their female relatives. The sunnawas usually cited
to argue that only a male could serve as the
guardian (walì) of previously unmarried women,
and this guardianship was required by most
schools of law. What this means is that classical
jurists granted men, in certain circumstances, polit-
ical authority over women within the context of the
family. According to jurists, this authority is God-
given, for the Qur±àn states that “men are responsi-
ble for women (al-rijàl qawwamùn ≠alàal-nisà±)”
(4:34). This authority, however, is functional, and
never absolute; it can be taken away by the state if
a man abuses or neglects his position (Tucker 1998,
42). For example, a man can lose his right to be his
daughter’s guardian in contracting her marriage if
his motivation is personal gain rather than his
daughter’s welfare.
Because men have a certain degree of coercive
authority over their wives, and because classical
jurists did not consider it proper for a non-Muslim
to exercise coercive authority over a Muslim, Is-
lamic law forbids the marriage of non-Muslim men
to Muslim women, yet permits Muslim men to
marry “chaste” women (al-mu™sànàt) from the
“People of the Book” (Qur±àn 5:5). Another conse-
quence of this principle is that non-Muslim women
who convert to Islam can be separated from their
non-Muslim husbands; even concubines who con-
vert to Islam can be removed from the ownership of
their non-Muslim masters (Mattson 1999, 178).
Any authority that men have over their female
relatives is always linked with the responsibility to
provide full maintenance (nafaqa). Maintenance
law is one of the most important areas of Islamic
family law, as is evidenced by the early compilation
of complete texts devoted to the subject. Fathers
are required to provide full support for unmarried
daughters, even as adults. A single, divorced, or
widowed woman who is in need has the right to
support from her male relatives, including her
father, brothers, sons, and uncles. Even married
women whose husbands are unable to support
them can demand support from male relatives; in
such cases, however, the support can be considered
an obligatory loan to the husband who should
reimburse the expenses when he is able.
Given this potential financial and emotional bur-
den male relatives could bear, it was clearly in men’s
interests to find husbands who were willing and452 law: family law, 7th–late 18th centuries
able to support their female relatives for their lives.
One instrument for protecting women’s interests
was the requirement that a previously unmarried
woman must have her male guardian consent to her
marriage. Among the Sunnìs, only the £anafìs did
not require the guardian’s approval for the mar-
riage of a female virgin. The £anafìs did protect the
family’s interests, however, by permitting the family
to block the marriage of a female virgin if her mate
was not her “equal.” Equality (kafà±a) could be
considered from many different aspects in the
£anafì school, including profession, ethnicity,
social status, and religiosity. The other Sunnì
schools also recognized the doctine of kafà±a, but
they used it to limit marriages arranged by
guardians for their dependents. Since guardians are
permitted to contract marriages for minor depend-
ents (male and female), the doctrine made it possi-
ble for other guardians to object to the contract if
they considered the groom unequal to the bride.
Among the Shì≠ìs,kafà±awas applied to ensure that
descendents of the Prophet in particular were not
given away in unsuitable marriages.
It would be reductionist to consider guardianship
simply an instrument of control that men willfully
exercised over women. If this were the case, it
would be difficult to explain why a previously mar-
ried woman (thayyib) was permitted to contract her
own marriage – especially in an age where second
and third marriages were not uncommon. In addi-
tion, we cannot reasonably explain guardianship
simply as an instrument to protect the financial
interests of the family. Rather, the instruments of
Islamic family law appear to have more internal
consistency if we approach them from the domi-
nant underlying assumption, an assumption that is
often explicitly articulated, that the paternalistic
protection of male relatives is necessary because
women are more vulnerable to poverty, harm, and
exploitation than men. The desire to protect both
women and their families from predatory outsiders
is evident, for example, in an account of a disagree-
ment between the founders of two of the orthodox
Sunnìschools of law, Màlik (d. 796) and al-Shàfi≠ì
(d. 820). Màlik is reported to have waived the
requirement that a previously unmarried women
had to have the approval of her guardian for mar-
riage if the woman was from one of the lower
classes of society whose customs did not include a
regular reliance on guardians. Apparently Màlik,
who gave significant weight to custom as a source
of law, felt that such people, since they had little to
lose in the way of wealth or family solidarity in any
case, should be permitted to practice their own cus-
toms. Al-Shàfi≠ìstrongly disagreed, arguing that