Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the Maliki School

By: Mohammad Fadel

This Essay takes a critical look at a doctrine that is often cited – by Muslims and non-Muslims alike – as indicative of Islamic law’s systematic gender discrimination in favor of men and against women: the legal requirement that a Muslim woman, prior to her marriage, must gain the permission of her father, or another male relative. This is in contrast to a Muslim male, who, it is said, may marry without the permission of his father, or any other relative. Based on a close reading of the relevant Maliki doctrines, one can make the following conclusions. First, there is no basis to conclude that under Maliki doctrine female autonomy with respect to marriage is subordinated to the private interests of her male relatives. Second, Maliki doctrine did discriminate against females with respect to emancipation from the guardianship of their fathers based on a legal presumption that females were prone to squandering their property. According to Malikis, this fact prevented females from enjoying full legal capacity until they proved in court, using a procedure called tarshid, their competency in managing their economic affairs. This was in contrast to male children, who were assumed to have such capacity simultaneously with the onset of physical puberty. Once a woman was declared to be financially competent, whether married or not, she attained full legal capacity, including, the capacity to marry without the approval of her father or other male relatives, and indeed, she could marry in spite of them. 

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