Great Books of Islamic Civilization The Center for Muslim Contribution to Civilization IDE EL yay Jurist s Primer VOLUME II IAM da MN A aL ey Ibn Rushd SPM Glos ee Me tm. e ahr ret Reviewed by Professor Mohammad Abdul RaufCONTENTS OF VOLUME Ii (IN BRIEF) DETAILED CONTENTS FOREWORD ABOUT THIS SERIES CENTER FOR MUSLIM CONTRIBUTION: TO CIVILIZATION: BOARD OF TRUSTEES CENTER FOR MUSLIM CONTRIBUTION TO CIVILIZATION: BOARD AND ADVISORS INTRODUCTION PREFACE XVII. XIX. THE BOOK OF NIKAH (MARRIAGE) THE BOOK OF 7ALAQ (DIVORCE) THE BOOK OF AL-ILP (VOW OF CONTINENCE) THE BOOK OF Z/HAR (INJURIOUS ASSIMILATION) THE BOOK OF LIAN (IMPRECATION) THE BOOK OF /HDAD (MOURNING) THE BOOK OF BUY0¢ (SALES) THE BOOK OF SARF (EXCHANGE) THE BOOK OF SALAM (ADVANCE PAYMENT) THE BOOK OF KHIYAR (SALE WITH AN OPTION) THE BOOK OF MURABAHA (SALE AT STATED COST PRICE) xxvii xxix xxxii XXxXili -xlix 1 7 121 127 140 150 153 232 240 250 256XXIX. XXX. XXXI. XXXII. CXXIIL, XXIV. XXXV. They said the word’ “orphan” (yatm) is not applied to anyone except the non-bdligh girl. Others have said the name orphan is applied to the baligh girl because of the evidence in his (God’s peace and blessings -be upon him) saying, “Seek permission from the orphan girl”, and the girl whose permission is sought is one who is capable of consent, and she is the baligh girl. Thus, their disagreement has another reason and that is the equivocality (ishtirak) of the word orphan (yattm). Those who have not permitted marriage through someone other than the father, have argued on the basis of -his (God’s peace and bléssings be upon him) saying that “the orphan girl is to be asked about herself”. They said that the minor, by agreement, is not one of those who grant permission, therefore, denial of the right of persons other than the father is obligatory. And they may also add that this is the Aukm of the orphan girl who is capable of giving consent. The case of the minor is not (expressly) covered by the sharia, In response to the question whether the guardian, who is not a father, can contract the marriage of a minor boy, Malik granted permission to the executor (vast) and Aba Hanifa permitted this to the guardians (amliy@), except that he granted the minor the option (éhiyar) upon attaining puberty, while Malik did not make this obligatory. Al-ShafiT said that none other than the father can contract his marriage. The reason for their disagreement in this is .the construction of the analogy for those other than the father from the case of the father. Thus, those who did not find in the person other than the father the reasons uncovered by itihad that permitted the father to contract the marriage of one of his minor children, did not permit this, while those who said that such reasons were to be found for others did permit it. Those who made a distinction in this between the minor boy and the minor girl were of the view that a male 5 QuPan 4:38 THE DISTINGUISHED JURIST’S PRIMER possesses the right to divorce upon attaining puberty, while the female does not. For this reason Aba Hanifa has granted both an option upon attaining puberty. 18.2.1.3. Aspect 3: Is the-contract permissible with an option (éhiyar)? ‘The third aspect is whether the contract of marriage is permitted with an option (khiyar). The majority are of the view that it is not permitted. Abi Thawr said it is. The reason for their disagreement is the vacillation of the contract of marriage between sales (buya‘) in which an option is not permitted and those sales in which it is. We can say that the principle in sales is that there is no option except when there is a text supporting it, and the burden of proof is upon one who wishes to establish it. We can also say that the principle is the prohibition of option in sales and that its basis is hazard (gharar). In marriages there is no hazard because their object is quality and not measure, and because the need ‘for option and examination in marriage is more than that in sales. With respect to delay in acceptance on the part of one of the parties to the contract, Malik permitted a slight delay, while some prohibited it. Others permitted it in a manner that the guardian contracts a woman’s marriage without her consent, but when the information reaches her she permits it. From among those who prohibited it absolutely is al-Shafit and from those who permitted it absolutely are Aba Hanifa and his disciples, while Malik distinguished between an extended and a short delay. The reason for disagreement is whether (the existence of) acceptance by both parties simultaneously is 2 condition for the validity of the contract. A similar disagreement is presented in sales. 18.2.2, Element 2: The Conditions of the Contract + In this topic there are three sections: Section 1: Guardians (Amliya”); Section 2: Witnesses; Section 3: Dower (sadaq). 18.2.2.1. Section 1: The Guardians (Awliya) The study of guardians is undertaken from four aspects. First, the stipulation of guardianship (wilaya) for the validity of marriage. Second, the qualifications of a guardian. Third, the kinds of guardians, their priority for guardianship, and related issues. Fourth, the prevention of ward marriages by the guardians and differences arising between a guardian and his ward.THE BOOK OF NIKAI# (MARRIAGE) 9 3 18.2.2.1.1. Aspect 1: Is guardianship a condition for the validity of the contract of marriage? The jurists disagreed whether guardianship is one of the conditions for the validity of marriage. Malik, in Ashhab’s narration from him, said that there is no marriage without a guardian and that it (guardianship) is a condition of validity. Al-Shafit held the same opinion. Abt Hanifa, Zufar, al-Sha‘bi and al-Zuhri said that if a woman contracts her marriage without a guardian, and with someone of equivalent status (kuP), it is permitted. Dawid distinguished between a virgin and a deflowered woman and stipulated the existence of a guardian as a condition in the case of a‘ virgin, but did not stipulate it in the case of a deflowered woman. The fourth opinion is Malik’s, as derived from Ibn al-Qasim’s nariatioh, that its stipulation as a demand is recommended (sunna), but not obligatory. This is because it is narrated from him that he used to view inheritance among parties married without a guardian {as valid), and permitted an unchaste woman to appoint a man as her guardian for her marriage, and he held as recommended that a deflowered woman present a guardian who could contract on her behalf. Thus, guardianship for him is one of the complementary demands and not a condition for validity, as against the statement of Malik’s disciples from Baghdad, who consider it a condition of validity and not that of perfection. The reason for their disagreement is the absence of a verse or tradition that is apparent (zahir), not to say explicit, about the stipulation of guardianship as a condition of marriage. In fact the verses and traditions that are quoted in practice, by those who stipulate it as a condition, are all subject to interpretation. Similarly, the verses and traditions that are quoted in support of its absence as a condition are also not so clear on the issue. The traditions, besides being unclear in meaning, are disputed as to-their authenticity, except the tradition of Ibn ‘Abbas, which negates it, but it lacks persuasive force as the original rule requires freedom from all liability. We will state the most prominent sources from among those cited for support by both parties and explain the aspects of probability in them. The most prominent sources used from the Quran, by those who kiy down guardiariship as a condition, are the words of the Exalted: “[When] they reach their term, place not difficulties in the way of their marrying their husbands”. They said that this is addressed to the guardians. If they had no right of guardianship how is it that they were prohibited from preverition (of marriage)? About the words of the Exalted: “And do not marry idolaters till they believe”, they said that this too is addressed to the guardians. The most prominent tradition used by them is narrated by al-Zuhri from ‘Urwa from Aisha that she said, “The Messenger of Allah (God’s peace and. blessings be 6 Quran 2 : 232 7 QuPan 2: 22110 ‘THE DISTINGUISHED JURIST’S PRIMER upon him) ‘Any woman who marries without the consent of her guardian, her marriage is void, void, void, and if the wedding takes place she is entitled to dower according to her status (mahr al-mithl). And if they should disagree, then, the sultan is the guardian of whoever is without a guardian’.” It is narrated by al-Tirmidhi who said it is a fasan tradition. Among the verses from the Quran and the traditions, used by those who do not lay down guardianship as a condition, are the words of the Exalted: “{Tyhen there is no sin for you in aught that they (widowed women) may do with themselves in decency”.® They maintain that this is proof of the permissibility of her entering into a contract for her marriage on her own. They said that in addition to this, the act (of marrying independently) is attributed to them in several other verses. Thus, the words, “[I]n marrying their husbands” and “until she hath wedded another husband”.!? In their reliance on traditions, they argued on the basis of a report by Ibn ‘Abbis, the authenticity of which is agreed upon. It is the saying of the Prophet (God’s peace and blessings be upon him) that “the deflowered woman has a greater right over herself than her guardian, and the virgin is to be asked about herself, and her silence is her consent”. It is on the basis of this tradition that Dawid argued about the distinction he made between the deflowered woman and the virgin. These, then, are the best-known evidences put forward by both parties from the transmitted. texts. In the words of the Exalted: “[A]nd [when] they reach their term do not place difficulties in their way of marrying their husbands”,!! there is nothing more than a proscription for the relatives and residuaries that they may not prevent her (the woman) from marrying, and from this proscription for non- prevention it is not understood, either in its metaphorical or actual meaning, that their (the guardian’s) consent is stipulated for the validity of the contract. I mean, from any aspect of the apparent or explicit indication of the communication (kita). In fact, the opposite may be understood from it, which is that there is no way the guardians can prevent their wards (from marrying). Similarly, the words of the Exalted: “And do not marry idolaters till they believe”,!? are better understood as a communication for the rulers (alal amr) of the Muslims or for all the Muslims collectively rather than a communication for the guardians. On the whole, it vacillates between being a communication for the guardians or for the rulers. Thus, those who have argued on the basis of this verse are under the obligation to explain how the 8 Quran 2 ; 234 % Quran 2 : 232 1 QuPan 2 : 230 1 QuPan 2 : 232 QuPan 2: 221THE BOOK OF NIKAH (MARRIAGE) Hl communication is addressed, through its apparent meaning, to the guardians and not to the rulers. If it is maintained that it has a general implication, and being general it includes both rulers and guardians, it will be said that this communication implies the denial of a right in which the guardians and others are equal, and their being addressed does not grant them exclusive authority for giving consent. If we say that it is a communication addressed to the guardians, making it obligatory that they stipulate their consent for the validity of marriage, it would nevertheless be an unelaborated (imujmaf) communication and acting according to it would be difficult as there is fo indication in it about the kinds of guardians, their qualifications and their grades. The explanation (bayan) must not be delayed from the time of its need. Had there been a known Jaw practised on this issue it would have come down through a collective communal transmission or through a transmission close to it as this was a point of general need and it is known that there were those in Medina who had no guardians. In addition, it has not been related from the Prophet (God’s peace and blessings be upon him)-that he used to administer their marriage contracts or that he appointed someone who performed this function. Further, the purpose of the verse is not-to expound the kukm of wildya, but the (purpose is) to prohibit marriage with the polytheists, men and women. This is evident—Allah knows best. ‘Aisha’s tradition is disputed with respect to the obligation of acting upon it. The preferred course is that a tradition disputed with respect to its soundness does not:give rise to the obligation of acting upon it, and even if we concede the soundness of the tradition, there is nothing in it beyond the stipulation of seeking the permission of the guardian by one who has a guardian, I mean, the female ward. If we concede that it is general for all women, it does not contain the prohibition for a woman to contract her own marriage, that is, she cannot ‘herself conclude the contract. In fact, it is evident from it that if the guardian grants her his permission, it is permitted to her to form her own contract without there being the stipulation of including the guardian among the witnesses for the validity of the contract. The meaning of what is adduced as proof by the other party of the words of the Exalted, “[TJhere is no sin for you in that which they do of themselves within the recognized limits”,'4 indicates a prohibition of attributing blame to them for acting independently to the exclusion of the guardians, and there is no act through: which ‘a woman -can go against the wishes of her guardian except the contract of marriage. The apparent meaning of the verse, then, 13 QuPan 2 : 240. Pickthall’s translation has been altered slightly. He uses the word “rights” for recognized limits,2 THE DISTINGUISHED JURIST’S PRIMER, Allah knows best, is that a woman has the right to contract her own marriage ind the guardians have a right to revoke it if it is not in conformity with her status. This is the manifest requirement of the law, but none of the jurists has 2xpressed it. Arguing on the basis of a part of a verse and not arguing on the basis of the remaining part exhibits weakness (of method). There is no evidence of exclusivity in the verse in attributing the contract of marriage to them (the women), but the principle is that it is exclusive, unless an evidence to the contrary is-adduced to contradict this. The tradition of Ibn ‘Abbas is, upon my life, explicit in indicating the distinction between a deflowered woman and a virgin, for if permission from each one of them is to be sought and it is their guardian who supervises the contract, then, in what, I wish I knew, does the widow have a greater right over herself than her guardian? The tradition of al-Zuhri would be :better (understood) if it is considered to be in conformity with this tradition rather than being in conflict with it. It is probable that the difference between the two is only to the extent of one being explicit and the other not being so, and silence is sufficient for the contract. The proof in the words of the Exalted, “[TJhere is no sin for ‘you in that which they do of themselves within their recognized limits”,!* indicating that a woman has a right to form’her own contract, is stronger than the implication of the words of the Exalted, “And do not marry idolaters till they believe”,'5 which are claimed to convey that the guardian has the right to conclude the contract. ‘The Hanafites deemed the tradition of ‘Aisha as weak for the reason that it is a tradition narrated by a group from Ibn Jurayj from al-Zuhri, and Ibn ‘Ulayya related from Ibn Jurayj that he (Ibn Jurayj) asked al-Zuhri about it, but he did not know of it. They: added: “The:evidence confirming this is that al-Zuhrt did not make the stipulation of wilaya, nor is wildya upheld in isha’s opinion.” They also argued on the basis of the tradition of Ibn ‘Abbas, who said, “There is’no marriage without a guardian and two Sadi witnesses”. The completeness of its chain, however, is disputed. In the same manner, they differed about the tradition concerning the marriage of the Prophet (God’s peace and blessings be upon him) to. Umm Salama and his ordering her {young) son to give her away himself in marriage. The argument of the parties based on reason is equivocal, as it is possible to say that when discretion (rushd) is found in a woman, it is sufficient for purposes of the marriage contract, for it is deemed to be so in the case of financial transactions. It may be said, however, that a woman is inclined toward 4 QuPan 2: 240 4 Quran 2: 221THE BOOK OF NIKAH (MARRIAGE) 13 men-more than she is inclined toward wealth, and it is for this reason that the shar has been cautious in interdicting her permanently in: this respect; the shame that may result from her casting herself in a place out of her status will most likely affect the guardians. It is, however, sufficient to say here that the guardians do have a right of revocation and inquiry. The issue is ambivalent, as you can see, but the point which forces itself upon the mind is that if the lawgiver had intended the stipulation of guardianship, he would have elaborated the categories of the guardians, their types, and grades. Delay of the elaboration, beyond the time of its need, would be harmful. If delay in the needed explanation is not permitted to him (God’s peace and blessings.be upon him), especially when the general public need’ requires that the stipulation of guardianship be transmitted through a general‘communal transmission or in a manner close to it—and yet it is not transmitted—it makes it necessary to believe in one of two possibilities: that guardianship is not a condition for the validity of marriage, and that the guardians have only the right of inquiry in it, or that if guardianship is a condition, then, the explanation of qualifications, types, and grades of the guardians is not a condition for its validity, and it is for this reason that the opinion of those Who nullify the contract by a remote guardian in the presence of an immediate guardian, is to be deemed as weak. 18.2.2.1.2. Aspect 2: Qualifications and disqualifications for guardianship With respect to qualifications establishing entitlement, and disqualifications leading to denial of guardianship, they agréed’ that thie conditions for guardianship are Islam, bulagh, and being a male; the disqualifications are the opposite of these, that is, disbelief, minority, and being a female. They disagreed about three cases: that of the slave, the /asig, and the prodigal (safik). Most of the jurists inclined toward the prevention of the slave’s guardianship, but it was permitted by AbG Hanifa. The well-known opinion in the school about discretion (ruskd)—that is, according to the majority of the disciples of Malik~is that it is not one of its conditions, I mean, of guardianship, which was also Aba Hanifa’s: opinion. Al-Shafi@ said that it is a condition, and an opinion similar to al-Shafi’s was related from Malik. Al-Shafi’s opinion was also adopted by Ashhab and Abii Mus‘ab. The reason for disagreement is the similarity of this kind of guardianship with guardianship over wealth, Those who said that discretion is necessitated in this kind of guardianship, despite its absence from that over wealth, held that it is not a condition that he possess discretion in the case of wealth, but those who maintained that this was impossible ruled that discretion is:a must for guardianship over wealth. Discretion, in fact, is of two kinds, as you can see, I mean, the discretion related to wealth is different from discretion required by the woman in making a choice about proportionality of statis.4 THE DISTINGUISHED JURIST’S PRIMER They differed about ‘adala (probity) due to the fact that it is based on rational inquiry, I mean, in this kind of guardianship, and, therefore, (the guardian) cannot be trusted, in the absence of ‘adala, to select someone who is an equal match for her. It is possible to say that the situation (here) in which guardians make a choice for their wards, of someone with equal status, .is different from the general meaning of Saddle. Here it is the fear of shame in case they make the wrong choice. This ‘adala exists naturally, while the other kind of ‘adala is acquired. The deficient capacity of the slave causes disagreement about his guardianship, as it does in the case of his ‘adala. 18.2.2.1.3. Aspect 3: Kinds of guardianship The bases for the kinds of guardianship, according to those who uphold it, are three: descent, authority, and superior and subordinate clientage. According to Malik, the qualification of Islam by itself is sufficient for guardianship over one of a low social status. They differed about the mast (executor). Malik said that the wast can be a guardian, while al-Shafit prohibited this. The reason for disagreement is their dispute whether the nature of guardianship is such that it makes deputization possible. It is for the very same reason that they disagreed about agency (wakala) in marriage, but the majority upheld it, the exception being Aba Thawr. There is no difference between agency and executorship, except that an executor is an agent after death, while agency is terminated at death. They disagreed about the priorities in guardianship on the basis of lineage. According to Malik, guardianship is allocated among residuaries, excluding the son (in the case of the mother), thus, whoever is the closest from among the residuaries has the right to be a guardian. The sons, according to him, even if in the lowest rank of descendants, have a higher priority. They are followed by the fathers, uncles german, consanguine uncles, sons of the ‘brother german, sons of consanguine brothers, and the grandfathers on the father’s side, in that order. Al-Mughira said that the grandfather and his father have a higher priority than the brother and his son, for he (the brother or his son) is not an outsider, then come the uncles graded like the brothers, however low in rank, followed by the client (maw/a) and then by the sultan. The higher-order client, according to ‘him (Malik), has a right prior to that of the lower-order client. The executor, according to him, has priority over the guardian: through lineage, that is, the executor appointed by the father. His disciples differed about the priority of the father’s executor over a guardian through lineage. Ibn al-Qasim, in conformity with Malik’s opinion, said’ that the: executor has a superior right, while Ibn: al-Majishon and Ibn ‘Abd al- Hakam said that the guardian has a higher priority. Al-Shafit went against Malik in the guardianship of sons (over theirTHE BOOK OF NIKAH (MARRIAGE) 15 mothers), and also in the preference of brothers over the grandfather, not permitting it as a rule, saying.that there is no guardianship for the son. It is related from Malik that the father has priority over the son, which is preferable. He said that the grandfather has priority over the brother, which was also the opinion of al-Mughira. Al-Shafi, on the other hand, considered the residuaries—the son not being among her residiiaries—due to the tradition of (Umar: “A woman is not to be married without the consent of her guardian, or one of her relatives having authority, or of the sultan”. Malik did not take this into account, in the case of the son, because of the tradition of Umm Salama “that the Prophet (God’s peace and blessings be upon him) ordered her son to give her away in marriage himself”, and also because they, that is, Malik and al-Shafi't, agreed that the son inherits the obligatory guardianship of his mother (in other matters), and guardianship according to.them is for the residuaries. The reason for disagreement about the grandfather is based on their dispute about who is closer in relationship, the grandfather or the brother. There are three important issues related to the grades of the guardians. First, if a remote guardian gives her away in marriage in the presence of the immediate guardian. Second, if the immediate guardian is absent, is guardianship then transferred to the remote guardian or to the sultan? Third, if the father deserts his virgin daughter, is guardianship passed on? 18.2.2.1.3.1, Issue 1: Contract of the remote guardian in the presence of the immediate guardian Malik’s opinion differed on this issue. He said once that if the remote guardian gives her away in marriage, in the presence of an immediate guardian, the marriage is annulled. On another occasion he said that it is valid. A third time he said that it is up to the immediate guardian to ratify it or repudiate it: These different opinions, related from him, apply to cases other than that of the father and his virgin daughter and that of the éxecutor and his interdicted ward, as in these cases his opinion is firm that the contract would be repudiated, that is, in case of marriage through someone other than the virgin daughter’s father, or by someone other than the executor in the presence of the executor. Al-Shafit said that no one has the right to conclude.the contract in the presence of the father irrespective of the bride being a virgin girl or a deflowered woman. The reason for disagreement is the dispute whether gradation (of the guardians) is a kukm shar‘t, that is, established through the law (shar) in the case of wildya. If it is such a kukm, is it the right of the immediate guardian or is it the right of Allah? Those who did not consider gradation as a Aukm of law said that marriage contracted by the remote guardian in the presence of the16 THE DISTINGUISHED JURIST’S PRIMER immediate guardian is valid. Those who considered it a hukm of law based upon the right of the immediate guardian said that the contract is effective to the. extent that if it is ratified by the immediate guardian it is permissible, otherwise it is revoked. Those who maintained that it is the right of Allah ‘said that the marriage is not deemed to have taken place. Some of the jurists within the school (Malik’s) rejected this interpretation, that is, the contract being void and not effective. 18.2.2.1.3.2. Issue 2: Transfer of guardianship in the absence of the immediate guardian Malik said that if the immediate guardian is absent, guardianship is transferred to the next guardian. Al-ShafiT said that it is transferred to the sultan. The reason for their disagreement is the dispute whether absence is equivalent to death, as they have no disagreement about its transfer in the case of death. 18,2.2.1.3.3. Issue 3: Father absent leaving behind a virgin daughter There are detailed discussions and disagreements about it within the school (Malik’s). They refer to the remoteness of his (the father’s) location, prolonged or short absence, and knowledge or ignorance about his location, as well as the daughter’s need for marriage, which may be due to the-lack of maintenance, fear of inadequate protection, or due to both factors cambined. The school agreed that if the father is absent, having gone to a remote place, or his location is unknown, or he is a prisoner of war, but the daughter is protected and provided for, not requiring marriage, she is not to be married (by the next guardian). If she desires to be married, then, she is to be married in the ase of imprisonment of her father or when his:location is not known. They disagreed whether she is to be married when his location is known but he is in a remote place. It is said that.she is to be married, which is Malik’s opinion, and ‘it is said that she is not to be married, which is the opinion of ‘Abd al-Malik and Ibn Wahb. Tn case‘of lack of maintenance or adequate protection, she is to be married in the three stated situations, that is, in the absence of her father, having gone to a remote place, liis imprisonment, and in the case of his logation being unknown. Similarly, when both factors are combined (i.e. lack of adequate protection and the need for maintenance). If she has inadequate protection, she is to be married even if she does not demand it. They did not disagree, as far as I think, that she is not to be married when her father has departed to a nearby -place and his location is known, .because he can be approached. When examined on the basis of the interests to be-secured (masalik), it can: be said that when time is short, and the sultan fears unbecoming conduct from her, he is to give her away in marriage even if the location (of her father) is close.THE BOOK OF NIKAH (MARRIAGE) 7 If we were to say that the right of the remote guardian subsists even in the presence of the immediate guardian, and the woman delegates her affair to both, with both making separate contracts of marriage for her, the possibility is that one of them preceded the other in concluding the contract or both finalized the contracts at the same time. It is also possible that the first contract comes to be known or it may not be known. If the first contract comes to be known, they agreed that she is (to be declared) the. wife of the husband through the first contract. This is the case when none of them has consummated the marriage with her. They disagreed when the second husband consummates the marriage with her. One group of jurists said that she is the wife of the first, while another group said that she is the wife of the second, which is the opinion of Malik and Ibn al-Qasim. The first opinion was upheld by al-Shafit and Ibn ‘Abd al- Hakam. If both guardians concluded: the marriages at the same time, there is no disagreement about the rescission of the contracts, as far as 1 know. The reason for disagreement in the consideration of consummation is based upon the conflict of the general meaning with analogy, as it is related that the Prophet (God’s peace and blessings be upon him) said, “If a woman. is given away in marriage separately by two guardians, she belongs to the first (husband) among them”. The general meaning of this tradition requires that she is the wife of the first husband, irrespective of the second having consummated marriage with her. Those who took consummation into account compared it to the consumption of goods in a contract.of a coerced sale, which is weak. If, however, the first contract was not known, the majority rule for rescission, while Malik said that it is to be rescinded when none of them ‘has consummated the marriage. Shurayh said that she is to be given a choice, and whosoever she chooses is to be her husband. This is a deviant opinion, although it has also been’ related from “Umar ibn ‘Abd al-CAziz. 18.2.2.1.4. Aspect 4: Removal of guardians They agreed that the guardian does not have the right to decline his ward’s marriage, if she desires marriage to a man of equal status and with a dower in keeping with such status. If he does this, her case will be referred to the sultan who will give her away in marriage, except when the father is her guardian, about which there is disagreement in the school. After agreeing on this, they differed about the meaning of ka/aa that is to be taken into account, and whether sadag al-mithl (dower. conforming with status) constitutes a part of it. They agreed that a woman has a right to refuse marriage when a mujbir (coercing) guardian is forcing her into it and there is no proportionality of status, as in the case of a father forcing his virgin daughter. This is so, with complete agreement of the jurists, when the girl has not attained puberty, and with some disagreement in the‘8 THE DISTINGUISHED JURIST’S PRIMER cases of a major and a deflowered minor, as has preceded. Similarly, when the executor is forcing his ward, according to those who hold this opinion. They agreed that a factor to be considered in kaf@a’is religion, except what has been related from Muhammad ibn al-Hasan about the climination of the attribute of religion (in this issue). The school was in agreement that if a father were to get his virgin daughter married to a drunkard or a fasig, she has the right to refuse compliance. The judge is to take cognizance of this and to annul the marriage. Similarly, when he gets her married to a person possessing wealth that is haram, or one who is knawn to pronounce divorce very often. They disagreed about lineage whether it constitutes a part of kaf@a, as they did about liberty, financial ease, and freedom from bodily defects. It is well known of Malik that he permitted marriage between the Arabs and the clients, for which he.argued on the basis of the words of the Exalted, “Lo! the noblest of you, in the sight of Allah, is the best in conduct”.!© Sufyan al-Thawri and Ahmad said thar an Arab woman is not to marry a client. Ab Hanifa and his disciples said that a Quraysh woman can marry only a Quraysh, and an Arab woman an Arab. The reason for their disagreement is their dispute over the meaning of the saying of the Prophet (God’s peace and blessings be upon him), “A woman is married for her piety (religion), her beauty, her wealth, and her noble descent, but take hold of piety and-you will be satisfied with what you have”. Some of the jurists held that only piety is to be taken into account, because of the words of the Prophet, “But you should marry the pious and you will be satisfied with what you have”. Others said that noble descent, here, stands for piety, as does wealth. Nothing, however, can be eliminated from these, except when excluded by corisensus (ijma‘), as has been done by declaring that beauty does not constitute an clement of ka/@a. All those who revoke marriage on the basis of defects maintain that freedom from bodily defects is a part of kafaa, because of which beauty is taken into consideration, ta some extent. ‘The jurists within the school did not disagree that marriage contracted by a father for-his virgin daughter may be revoked on the basis of poverty, that is, when the' groom is poor and unable to maintain her. Wealth, thus, constitutes a part of kafa. Aba Hanifa does not maintain this opinion. There was no disagreement in the school about liberty that it is a part of £af@a, because of the established sunna granting the female slave a right to choose, if she is liberated (to maintain a pre-liberty marriage or otherwise). About mahr al-mithl, Malik and al-ShafiT maintain that it is not a part of kaf@a, and the father has the right to give his daughter away in marriage for an amount less than the mahr al-mithl, 8 Quran 49; 13THE BOOK OF NIKAH (MARRIAGE) 19 I mean, his virgin daughter. If a deflowered woman possessing discretion agrees to the amount (of dower),'the guardians do not have a right of interference. Aba Hanifa said that mahr al-mithl is an essential ingredient of kaf@a. The reason for. disagreement, with respect to the. father, is their dispute whether he has the right to reduce-a ‘part of the dower of his virgin daughter. In the case of the deflowered woman, it is because of their disagreement whether guardianship is revoked for her with respect to the amount of her dower, when she possesses discretion, just as it is revoked for all her financial transactions, or whether guardianship is not revoked (for the amount of dower) since it is still required in marriage, and: dower is one of its elements. This opinion would have suited those who stipulate guardianship rather than those who do not, but the matter has been turned around. A well-known issue is related to the ahkam of guardianship, which is whether it is permitted to.the guardian to marry his ward himself? Al-ShafiT prohibited this on the analogy of a judge and a witness, that is, he does not render judgment for himself nor does he testify for himself. Malik permitted it, and ] am not aware of his argument in this, except what is related that the Prophet (God’s peace and blessings be upon him) “married Umm Salama when she did not have a guardian”, as her son was a minor, and also :the established report “that the Prophet (God’s peace and blessings be upon him) emancipated Safiyya and deemed her emancipation to be her dower”.'? The principle for al-Shafit about the marriages of the Prophet (God’s peace and blessings be upon him) is that these were specific to him in the absence of generalized evidence, and the Prophet enjoys a number of exemptions, -but his opinion differed in the case of the head of the state. 18.2.2.2. Section 2: Attestation by Witnesses (Shahada) Aba Hanifa, al-Shafit and Malik agreed that attestation by witnesses is a condition of marriage. They disagreed whether it was a condition of completion required over an extended period as to the time of consummation or a condition of validity required at the time of contract. They agreed that a Secret marriage was not valid. They disagreed about the witnesses who attest the marriage contract, but are instructed to keep it secret, whether it amounts to a secret marriage. Malik said that it is a secret marriage and is to be rescinded, while Abo Hanifa and al-ShafiG said that it is not secret. The reason for disagreement is whether attestation is a hukm shar‘t or it serves the purpose of climinating disputes or denial. Those who held it to be a proscribed Aukm __'7 In these the Prophet may be said to have exercised his authority as the sultan; however, the same rule ‘ill apply to such an assertion, that is, whether the sultan can rendet judgment for himself,20 THE DISTINGUISHED JURIST’S PRIMER said that it is a condition of validity, but those who considered it as attestation of the contract said that it is a condition of completion. The source for this is what has been related from Ibn ‘Abbas: “There'is no marriage without two ‘ad! witnesses and a supervising guardian”. None of the Companions opposed this, and many jurists considered this to have constituted ijma‘, which is a weak claim. This tradition has been related as marfi and is recorded by al-Dar Qutni, who mentioned that among its transmitters are unknown persons. The contract can be concluded, according to Abt Hanifa, even through the attestation of fasigs, as the purpose in his view is only its publicity. Al-ShafiT is of the view that attestation includes both meanings, that is, proclamation and acceptance, therefore, he stipulates “adala as a condition. For Malik, however, it does not comprise proclamation when the witnesses have been instructed to maintain silence. The reason for their disagreement is whether the act attested by the witnesses can be designated ‘as secret. The source for the legality of proclamation is the saying of the Prophet (God’s peace and blessings be upon him), “Proclaim this marriage and beat the drums”. It is recorded by Abt’ Dawad.. ‘Umar is reported to have said, “This is a secret marriage, and had they gone ahead with it [ would have awarded rajm”. Aba Thawr and a group of jurists said that attestation by witnesses is net a condition for the validity of a marriage, neither a condition of validity nor that of completion, Hasan ibn ‘Alt is reported to have done this. It is related about him that he married without witnesses and then proclaimed his marriage. < 18.2.2.3. Section 3: Dower (Sadaq) The study of dower comprises six points. First, its Auém and elements. Second, fixing it entirely for the wife. Third, about its division into parts. Fourth, Tafwid and its huém. Fifth, void dowers and their Aukm, Sixth, disputes among the spouses over dower. 18.2.2.3.1. Case 1: The hukm and elements In this section there are four issues. First-is about its kukm. Second, about its amount. Third, about its species and description. Fourth, about its deferment. 18.2.2.3.1.1. Issue 1: The hukm In the discussion of its hukm, they agreed that it is one of the conditions of validity (of marriage), and an agreement to forgo it is not permitted, because ofTHE BOOK.OF NIKAH (MARRIAGE) 2 the words of the Exalted, “And give unto the women, (whom ye marry) free gift of their marriage portions”,!® and His words, “{S]o wed them by permission of their folk, and give unto them their portions in kindness”.!? 18.2.2.3.1.2. Issue 2: The amount They agreed about its amount that it has no maximum limit, but disagreed about its minimum limit. Al-Shafit, Ahmad, Ishaq, Aba Thawr, and the jurists of Medina, among the Tabi‘an, said that there is no minimum limit for it, and anything that can be a price or value for a thing may be the dower. This was the opinion of Ibn Wahb, from among the disciples of Malik. A group of jurists upheld the obligation of fixing the minimum amount of dower, but they differed about its extent. Two opinions are well known in this. First is Malik’s opinion and that of his disciples, while the second is that of Aba Hanifa and his disciples. Malik said that the minimum dower is one-fourth dinar of gold, or three measured dirhams of silver, or what is equivalent to three dirhams, that is, dirhams of measure only, according to the well-known opinion; while it is said that whatever is equivalent to any of them (the amounts in gold or silver). Abt Hanifa said that ten dirhams is the minimum; it is said five dirhams, and it is said forty dirhams. There are two reasons for disagreement over the amount. First is its vacillation between being a compensation—like other counter-values, in which mutual consent is taken into account for small or large amounts,.as is the case in sales—and an act of worship, in which it has to have a fixed time. This is so, as from the point of view that he (the husband) comes to own her benefits perpetually, it (dower) resembles compensation, but from the other aspect of the prohibition of consenting to forgo it by mutual agreement it resembles (an act of) worship. The second reason is the conflict of this analogy, requiring fixation, with the meaning of the tradition, which does not imply fixation. The analogy requiring fixation is, as we have said, an act of worship, and worship is of a determined duration. The tradition implying non-fixation is one tradition related by Sahl ibn Sa‘d al-Sa‘idt, which is agreed upon (by al-Bukhart and Muslim) for its soundness, and in which it is said “that a woman came up to the Messenger of Allah (God’s peace and blessings be upon him) and said to him, ‘O Messenger of Allah, I have bestowed myself to you as a gift.” She, then, waited there (for an answer) for a long time. A man got up (in the meantime) and said, ‘O Messenger of Allah, marry her to me, if you do not have a need for her.’ The Messenger of Allah (God’s peace and blessings be upon him) said (to him), ‘Do you have something that you can grant her as dower?” He replied, ‘I have Quran 4:4 © Quran 4: 25