Asma LAMRABET

This question remains, like many others, in the absence of a clear text, subject of different views of Muslim scholars belonging to different major Islamic schools of law. Indeed, the early Muslim jurists had diverging opinions about this issue and their arguments were solid but never categorical.^[i]

The Wali or the legal representative of the woman was, first and foremost, understood as a family relative who takes charge of protecting the interests of the bride by accompanying and supporting her in her future choices. It is only with time that some misogynistic readings dominated and gave the Wali a sense of patriarchal authority, coercion and abuse of power.

This came as a result of coining the concept of ‘Wali’ by some jurists in the time of Islamic civilization decline under the abusive name of "Wali jabri" meaning the compulsory guardian[ii]. This is who legitimize in the name of religion, legal abuses such as child marriage, marriage without consent of the bride or forced marriages and marriages by proxy.

All these "abuses" which were in contradiction with the Islamic principles and the interpretations of early jurists ended up giving the wali a negative sense that exceeds his supposed role of protecting women’s interests into subordinating her and putting her under guardianship, making her unable to make her own decisions and depriving her from her basic rights.

Through this process, one can understand how the issue of the Wali was - and is still in some countries where it is implemented by virtue of the laws of personal status - one of the "warhorses" of secular feminists who consider this concept a further evidence of the inferior status inflicted on women in the name of Islam.

It would be interesting then, to go through the original juristic texts in order to have an idea about the different argumentations presented by the various schools of law, and discover the acceptable "scope" of their respective interpretations, and to what extent the legal notion of "Wali" has been an "open" and "flexible" concept.

To summarize this, it is important to know that for the Maliki and Shafi'i schools the approval of the guardian is a necessary condition for a marriage to be valid, while for the Hanafi school and to a lesser extent for the Hanbali, the guardian's permission is not an essential condition for the marriage. Indeed, for the followers of Abu Hanifa, the adult and mature woman can sign her contract of marriage without consulting her guardian.

Therefore, we can conclude that that the permission and the presence of the guardian is an obligation only if the girl has not yet reached puberty, or wherein either of the spouses, although mature, is mentally disabled.

Ibn Rushd who deals with this issue quotes Quranic verses in favor of not requiring the Wali[iii]. Indeed, several Quranic verses show that the woman can pact her own marriage. “Then there is no blame upon you for what they do with themselves in an acceptable way (Ma’ruf)” Qur’an 2 ; 240. “Until [after] she marries a husband other than him” Quran 2 ; 230.

For this verse, which speaks of Ma’ruf or good commands, Ibn Rushd argues that this is the proof that, as long as the choice of the woman stays within the adequate (Ma’ruf) and proper manners, she is allowed to freely pact her marriage.

Ibn Rushd calls into attention that in the Medina there were many women who were alone -without family or relatives - and who arranged their marriage contracts alone without the presence of any guardian. He also reminds that no one has reported that the Prophet was guardian over those lone women[iv]. He concludes that if the Wali is mandatory for women to conclude their own marriage contract, the Qur'an would have spoken clearly about it and it would also indicate the type and degree of kinship of that guardian. He also reports that the Prophet would not leave instructions in relation to the rights, powers and limitations of a guardian.

As a matter of fact, the tradition of the prophet is not categorical in relation to this question and this is why scholars have different readings of it, sometimes to the extent of disagreement. First of all, all jurists agree to affirm that marriage is a contract between two people for a mutual life together. Therefore, their mutual consent is essential and indispensable to the validity of the contract. For this reason, even for those scholars who speak of the mandatory recourse to the guardian,  the latter cannot, in any case, force the woman to marry a man against her will. This is a basic principle in Islam that should always be in mind no matter what degree of divergence is there about the mandatory presence or absence of the guardian. Islam, in fact, guarantees for the woman the right to accept or refuse any marriage proposal, and the guardian remains in all cases as a "woman's right" who exists to protect, support and defend her.

We should not forget that all these laws were first conceived and stipulated within the principle of freedom granted by the Quran. But these laws are also conditioned by the context of patriarchal societies where women were often subjected to a culture of traditional discrimination.  This creates the necessity of a close male to be the guardian whose primary task is supposed to be protecting the woman’s interests

With regard to the prophetic tradition, and in the absence of a clear text and the divergences of scholars, it can be argued that all these opinions are acceptable and adaptable to our context today as long as they respect the basic principle which is the freedom of choice of the woman. In this particular case we should keep in mind the famous hadith cited by Ibn Abbass referring to the young woman who went to the Prophet to tell him that her father had forced her to marry. The Prophet then gave her the choice either to stay married or to cancel the marriage contract.

We can, finally, conclude by confirming three main principles based on this non-exhaustive analysis of juristic legislations:

1-Woman’s freedom to choose her future marital partner

2- The Refusal of familial or any other type of authority that would hinder the voluntary consent of both partners to get married.

3- There is no evidence of the necessity of the Wali or guardian’s consent either in Qur’an or in the prophetic tradition.

At this level, it is important to be clear that granting this freedom of choice does not mean that family ties should be broken, and that parents and close relatives have no right to advice the woman about her future husband. This is what some scholars who are against the obligation of the Wali suggested; that the woman can pact her marriage contract alone and that no one should forbid her from freely choosing her partner, provided that he has competence and good manners[v].

Above all, this means that the woman is convinced of her free choice without any negative pressure from her surroundings.

In fact, the sacred texts and classical legal interpretations give us a very wide margin of interpretation to legislate and find solutions in each particular context based on the principle that both partners will not be under enforcement or injustice. Therefore, people can choose according to their circumstances the most appropriate legal opinion. This is the case of the reform made to the Code of family status in Morocco in 2004; where the presence of the Wali went from obligatory to optional. In other words, it is up to the woman to choose whether she wants the presence of a guardian or not. We mean by the guardian here the one understood by the early scholars – a protector of her interests -  not the one understood in the time of decline and who represents an image of patriarchal despotism.

This concept of the Wali should be finally linked to the interpretation given by the Qur’an itself in the verse that says: "The believing men and women are allies or supporters (awliyaa ba’duhom min ba’d) of each other, they invite to the good and advice against the evil" Quran 9; 71

It is this understanding which should prevail: alliance, support, equality between men and women, who freely, conscientiously and confidently validate one of the most important human agreements; that of a common human life, where to build a family and live together is the most beautiful gift of the creation.

 Asma Lamrabet

March 2021