Gender Equality and the Doctrine of Wilāya

Part II

Approaches to Reform

6

Muslim scholarship has been divided over the status and rights of women in Islam, with issues ranging from polygamy and the right of divorce to gender equality. Even though the majority of religious leaders (ʿulamāʾ) have taken a conservative position, a growing number of scholars and jurists regard gender equality as the basic Islamic principle,1 and reject discrimination on the basis of gender. Unfortunately, this large diversity of Muslim voices is usually ignored, and writers on Islam generally describe the religion as incompatible with modernity and human rights, especially with regard to the principle of gender equality. Essentialising a legal tradition in this manner overlooks the social evolution of that tradition and its doctrines. This chapter studies the diversity of views among Muslim jurists about the doctrine of wilāya.² This diversity also reflects the changing social perception of gender over time. From case laws of the early colonial period in India, when British judges were mostly prejudiced against gender equality and regarded the rights given to women by Muslim family law as immoral,³ to family law reforms that began in Muslim societies after independence, the perception of gender equality has changed considerably. The reformist governments in Muslim countries adopted the methodology of Islamic modernism that stood for compatibility between Islam and modernity while the conservatives continue to oppose these reforms. The change in gender perception under the rising influence of Islamism in the late twentieth century has once again impacted the principle of gender equality. In Pakistan, legislation during the Islamisation of laws (1980–90) and a significant judgment (1997) on the requirement of a marriage guardian exemplify this influence.

Ignoring the inner dynamics of Muslim discourses, one tends to simplify the social and intellectual diversity in Muslim societies. The interest and focus on gender equality in current debates on Islamic law in fact points to the disturbing phenomena of forced marriages, honour killings and domestic violence that go unchallenged under traditional laws. To reduce this focus on reforms in Muslim societies to a Western impact, and to interpret Islamic modernist and ‘progressive’ Muslim discourses for gender equality as apologetic and Westernised, is to overlook this inner dynamism. Debates on gender equality, especially about wilāya (marriage guardianship) in the wake of the 1997 judgment in Pakistan, which I discuss below in this chapter, also reveal the ongoing tension about gender equality between reformists and the conservatives, who have renewed their emphasis on Islam’s incompatibility with modernity. They describe gender equality as a Western agenda that disrupts Muslim family structure, and defend wilāya as a divine law. In this chapter I argue that Muslim jurists have been interpreting gender equality over time in ways informed by their respective social contexts, and that the doctrine of wilāya is a social construction. The chapter is divided into three sections. The first offers a brief summary of the classical doctrine of marriage guardianship. The second analyses this doctrine, showing that social contexts informed the doctrine. The third looks at the issue of gender equality in some recent reconstructions of the concept of marriage guardianship.

2. The classical doctrine of wilāyat al-ijbār

The classical doctrine of marriage guardianship (wilāyat al-ijbār) is highly complex, as the jurists are divided over the meaning and interpretation of the terms wilāya (guardianship) and ijbār (coercion), as well as over the nature and authority of the marriage guardian. The following is a very brief summary of the doctrine.

a. Wilāya

Guardianship (wilāya/walāya) means the legal authority to manage the affairs of another person who lacks the required capacity. The presence of a marriage guardian (walī al-nikāḥ) is a formal requirement for the valid contract of a marriage.

Mustafa Ahmad al-Zarqaʾ distinguishes ‘guardianship’ (wilāya) from ‘legal representation’ (niyāba), despite the fact that, in principle, a ‘guardian’ is like a ‘legal representative’ who is acting on behalf of someone else. However, agency (wakāla) is created by individuals and is voluntary (ikhtiyārī). Guardianship, on the other hand, is a legal requirement.⁴ Subhi Mahmasani explains that guardianship is legally required in cases where the ward lacks legal capacity. The law authorises a near relative to act as a guardian in the minor’s interest and on his/her behalf. In ancient legal systems like Roman law and customary practices like in pre-Islamic Arabia, guardianship was also extended to such legal matters as marriage and divorce, since, in those systems, women lacked legal capacity and guardianship was required to fill that gap.⁵

b. Marriage guardian

Muslim schools of jurisprudence differ as to whether the authority of a marriage guardian is final and absolute, which means that a marriage contract concluded by the guardian cannot be annulled, or that no marriage contract is valid without his consent. On account of this authority, the marriage guardian is also called al-walī al-mujbir (guardian with coercive power). The doctrine of wilāyat al-ijbār (compulsory guardianship) has been in the process of continuous construction in the history of Islamic jurisprudence. Consequently, coercion (ijbār) as a technical legal term is used in three meanings: (1) that guardianship is an absolute right that cannot be waived; (2) that the guardian has absolute power to compel his ward against his/her will into marriage; and (3) that this authority makes the contract complete and final even though one of the parties lacks legal capacity. Adults of sound mind are generally considered as having the legal capacity to contract marriage, but the jurists are divided even on these criteria in the case of the marriage contract. Of course, gender is also contested as a criterion.

Wilāyat al-ijbār or al-wilāya al-ijbāriyya is defined as ‘enforcing one’s will on another person whether he or she agrees or disagrees’.⁶ In contrast to wilāya ikhtiyāriyya, in which the ward has the option to challenge the contract concluded by the guardian on his/her behalf, the contract under wilāyat al-ijbār is final. The authority of ijbār in marriage contract means that a guardian is not legally required to seek the consent of the ward for a marriage to be final and valid. It also includes the power to withhold his consent (ʿaḍl). It is difficult to translate the term ijbār into European languages. The French scholars usually translate the term as contrainte matrimoniale,⁷ and the English translation is often ‘compulsion’ or ‘force’.⁸

The power of a pre-Islamic father and head of the family who could pawn his children, and had the right, though rarely exercised, to kill them, illustrates the extent of the meaning of ijbār. Therefore, the right to contract marriage also belonged to the father or to the head of the family. The purpose of this right was to protect the honour of the family or of the tribe, and not of the individual spouse. The marriage was considered a tribal obligation rather than an agreement between two individuals.⁹ The marriage guardian (al-walī al-mujbir), then, has the right of both ijbār and ʿaḍl. Ijbār means the right to marry the ward to someone without his or her consent, and ʿaḍl means to intervene in the marriage or refuse permission to a marriage concluded by the ward on his/her own. The father is unanimously regarded as the guardian possessing this power. The Hanbali school does not extend this power to anyone else. The Shafiʿi school extends it only to the grandfather in the absence of the father. The Maliki school considers the executor of the father’s will also entitled to represent the father in this capacity. In his absence the power of ijbār belongs to the ruler (or to the court). The Hanafi school allows ijbār only in case of minor and insane wards, and the right of ʿaḍl in cases of incompatible marriage.

As mentioned already, the jurists are divided on whether insanity, minority, gender and religion are the only valid legal grounds for the incapacity of the ward, justifying the guardian’s power of coercion. Insanity is unanimously considered incapacity and hence a ground for ijbār. According to Hanafi and Hanbali jurists, minority is the main ground for coercion. For Shafiʿis the ground is virginity (being unmarried), hence a marriage guardian has coercive authority even in the case of an adult unmarried female. Malikis regard both ‘minority’ and ‘virginity’ as grounds for coercion. They explain that maturity (rushd), which is their criterion for legal capacity, is not achieved by adulthood or marriage. According to them, a married woman remains under the authority of her father until she is both married and has stayed with her husband. They rule that the father can declare his daughter legally capable and terminate the ijbār when, after due deliberation, he finds her mature enough to take care of her own interests. Hanafis and Hanbalis consider ijbār terminated when the ward is adult. In their diverse opinions, the jurists’ basic concern seems to be to protect the vulnerable ward in the marriage contracts.

According to the Maliki school, a guardian has the power to compel the following wards into marriage: a virgin girl (minor or adult), a minor divorcée or widow, and a girl of unsound mind. The Hanafi and Hanbali schools allow a guardian this right in the case of minor wards, both male and female. The Hanafi school also extends it to mentally incapacitated wards. Furthermore, they allow other agnate relatives to be guardians, in the same order of priority as regulated by the order of succession. Forced marriage is, however, revocable by a minor ward on attaining adulthood, according to the Hanafis (khiyār al-bulūgh, ‘option of puberty’). As I will discuss later, a Pakistani court has challenged this view. The Shafiʿi school allows this power only in case of virgins, regardless of whether they are minor or adult. The Maliki and Shafiʿi schools do not allow a guardian to compel a male ward to marry, because an adult male cannot be married without his consent and a minor male is not in immediate need of marriage. According to the Maliki, Shafiʿi and Hanbali schools, guardians other than al-walī al-mujbir cannot marry off a minor orphan girl; they must wait until she is of marriageable age.

A guardian loses his authority to compel his wards to marry when he loses his sanity, is absent or disappears for a long time, exercises his power without legal justification or withdraws his authority. A guardian also loses this power in the absence of grounds of ijbār. In cases where the marriage contracted by the guardian is disadvantageous to the ward, or the intended spouse is not of equal status or the dower is not proper, the ward or one of the relatives could apply to a court of law for intervention. Also, if the guardian is abusing his powers or is unnecessarily and unlawfully withholding his consent, the ward can approach the court for investigation. If the guardian cannot satisfy the court, his guardianship can be terminated. The court can appoint another guardian or can proceed on the ward’s behalf.

3. Analysis of the legal reasoning

Legal reasoning in Islamic law has been largely analogical, employing the method of qiyās based on the theory of the four sources for Islamic law: the Qurʾan, Sunna, ijmāʿ and qiyās. The first three are considered material sources, while the fourth, qiyās, is a formal method of justifying a conclusion on the basis of a precedent in the Text (the Qurʾan and Sunna) and the Islamic history of jurisprudence (the consensus of jurists or their doctrines). Legal reasoning, be it a doctrine, an expert opinion (fatwa) or a judgment (ḥukm), is a process of continuing legal reconstruction. As I understand it, ‘reconstruction’ is part of a three-phase juristic reasoning: interpretation, construction and reconstruction.

Interpretation is a language activity that focuses on a text in order to determine its meaning. Theories of meaning that informed classical methods of interpretation concentrated on word–meaning relations.¹⁰ Recent theories of language have advanced our understanding of meaning. These theories suggest that there are at least three approaches to the quest for meaning. One, which I will call the ‘objectivist’ approach, stresses an essential semantic relationship between words and their meaning. It focuses entirely on the text and its semantic contents because it believes that meaning is transmitted in the text. This quest for meaning is essentially linguistic. The second approach may be called ‘subjectivist’, as it stresses that the readers create the meaning. In other words, it is the readers who assign meaning by selecting and prioritising the various semantic contents. This happens quite often in jurisprudence when developing legal concepts and definitions. This apparently subjectivist interpretation is transformed into objectivist meaning within a school or group of jurists by convention and practice. The third approach may be called ‘teleological’ because it explores the reason behind the usage of the word. It is in some sense related to the subjectivist approach because it prioritises some of the semantic contents over others, but it is not completely subjectivist, because it provides criteria for this priority. In jurisprudence, the teleological approach explores the meaning by asking why the particular law or rule was enacted.

The phase following interpretation, which may be called ‘construction’, explores the rule in the text on the basis of this interpretation. Construction moves on from the semantic content to the legal content. In other words, it is concerned with applicative meaning in a certain legal framework; it refers to the legal implications that a text has for a particular case.

‘Reconstruction’ is a phase in which the earlier interpretation and construction are both revisited under changed circumstances. Interpretation now re-explores the semantic content of the legal text and construction selects, and specifies the range of these meanings within a given legal framework. Reconstruction, then, is a phase of legal reasoning in which a jurist revisits the construction, reviewing its framework and redefining it from the perspective of the intent of the Lawgiver or the purpose of law. The latter is known as the maqāṣid al-sharīʿa (objectives of law) approach, which will be discussed below. As the perception of the intent of the lawgiver may differ from one jurist to the other, their opinions may also differ. This diversity, known as ikhtilāf al-fuqahāʾ, illustrates the divergence in the process of reconstruction. As a jurist’s individual perception of the purpose of law is informed, among other things, by the social construction of law in his society, reconstruction may also vary with social changes. Therefore, the development of fiqh is a continuous reconstruction. The maqāṣid approach argues on the basis of the objectives of the law as a whole, rather than referring to a specific text. This approach regards the Shariʿa as being for the benefit of human beings. I will now analyse the doctrine of wilāya in this framework of legal reasoning, namely interpretation, construction and reconstruction.

a. Interpretation

The term wilāya shares a semantic field with walī and walāʾ. Let me, therefore, first present an overview of its various meanings.

The Qurʾan uses the word walī, often as an attribute of God, paired with synonymous terms like naṣīr (helper, for instance, 4:45, 4:89, 4:123, 9:116, 29:22, 33:17, 42:31), shafīʿ (one who intercedes, for instance, 32:4), wāq (shield, for instance, 13:37) and murshid (guide, for instance, 18:17). It has also been used with reference to human beings in the following meanings: defender of rights (17:33), a watcher over someone’s interests (2:282), ally (5:51, 5:81, 4:144), closely related (9:71) and master (in a negative sense with reference to Satan, 7:30).

The semantic field of the term wilāya thus includes the following meanings: control and authority, help, relation, succession and alliance. In the Arabic language, the term walī is used with reference to an orphan (walī al-yatīm) and a woman (walī al-marʾa); in the former case it means managing the ward’s affairs, and in the latter it means ‘authority to conclude her marriage and to not allow her to proceed to the marriage contract independently without him’.¹¹ Mawlā, a derivative from the same root, is used as a synonym for walī, and also in the meaning of successor, as well as ally and protector. Ibn Manzur (d. 1312), author of the dictionary Lisān al-ʿArab, finds six different meanings in the usage: agnate relative, helper, caretaker, client, patron (of a freed slave) and freed slave. A freed slave is like a cousin whose protection is obligatory and whose property is inheritable.¹²

We find further vital evidence about the institution of walāʾ in the hadith literature. The literature reveals that walāʾ was also closely associated with the practice of slavery. walāʾ and wilāya were legal rights belonging to the slave owner. A freed slave was called mawlā and remained under the guardianship of the owner. Imam ʿAli’s statement that ‘walāʾ is a form of slavery’ affirms this observation.¹³ Several stories narrated by ʿAʾisha also suggest that a slave, even after manumission (freedom), owed his/her walāʾ to the chief of the tribe. At succession, the right of walāʾ was inherited along with property.¹⁴ If a freed slave died and had no one to succeed him, his previous owner inherited all his property if they followed the same faith.

When discussing the marriage guardian, the jurists refer to different verses from the Qurʾan (2:221, 2:232, 2:234, 2:237, 4:2–3, 4:6, 4:25, 24:32, 60:10, 65:4); none of these uses the term walī or wilāya. They cite the following verse most frequently: ‘And when you have divorced women and they reach their term, do not prevent them from marrying their husbands, if it is agreed between them in kindness’ (2:232). Apparently, this verse forbids guardians from preventing their wards marrying the person of their choice, even their previous husbands. The jurists who consider marriage guardianship a requirement also cite the same verse. The latter argue that the prohibition in the verse implies that the guardians do have this right, or they would not be forbidden from exercising it. Another point of difference is the use of masculine and feminine forms in the above verses. The Hanafis cite 2:232, 2:234 and 65:4, which use the feminine form, to rule that women have the right to conclude their own marriage and do not need a marriage guardian.¹⁵ Others use 2:221, 2:232, 2:237, 4:2–3, 4:25, 24:32 and 60:10, which use the masculine form, to deduce the right of male guardians. I need not analyse the jurists’ discourse on these verses.

In order to establish the validity of the marriage of a minor and the need for a marriage guardian, the jurists refer to 4:2–3 and 65:4, which require guardians for orphan and minor girls respectively. Once the requirement is established, the jurists proceed to prove ijbār, as follows: since a minor has no capacity to contract a marriage, his or her consent is immaterial. As the minor’s lack of capacity may give unlimited power to the guardian, the jurists feel the need to propose various restrictions on this power. Firstly, Abu Hanifa allows the option of puberty to a minor girl if a guardian other than her father compelled her into marriage.¹⁶ Secondly, most of the jurists allow ijbār of a minor only in extreme cases, arguing that a minor is not in immediate need of marriage and hence can wait until marriageable age.¹⁷ The Hanafis argue that the guardian has a heavy responsibility to find a suitable mate for his ward. He may find a suitable one when his ward is still a minor, he may lose him if he waits or he may fear his own death. In such cases, early marriage is in the interest of the minor.¹⁸