Wali (Islamic legal guardian)

Walī (Arabic: ولي‎, plural ʾawliyāʾ أولياء) is an Arabic word with a number of meanings, including "custodian", "protector", "helper", "a man close to God", or "holy man",[1] etc.[2] "Wali" is someone who has "Walayah" (authority or guardianship) over somebody else, and in fiqh (Islamic jurisprudence) particularly "an authorized agent of the bride in concluding a marriage contract (Islamic Law)",[2] where the Wali traditionally selects the bride groom.

As of 2014, the practice of forbidding girls and women from travelling, conducting official business, or undergoing certain medical procedures without permission from their male guardian continues in some conservative Muslim countries, such as Saudi Arabia.[3]

Wali as agent of the bride

Muslim scholars have held that in order for the nikah (marriage) to be valid, there must be consent of the bride, the groom and the bride's wali or male guardian.[4] This view is held by most Muslim scholars, but the Hanafis hold that the wali's permission is not necessary for the nikah.[5] The wali is typically the father or, failing that, a paternal grandfather or brother of the bride. Typically a father, brother or husband (a mahram) or paternal grandfather is wali mujbir, or if there is no Muslim relative, a qadi may function as wali. An order of succession of various male relatives is often spelled out by jurists.[6] An example is this list written by Ibn Abd al-Wahhab: if the father is otherwise unavailable, guardianship should be assigned

first to the woman's brother, then to the paternal grandfather than to the woman's son.... [then it] passes to the tribe of the brother, unless it is law/base/despicable, ... [then the] paternal uncle takes over, followed by his son, then other relatives in paternal relationships. ... Maternal relative only have a claim to marriage guardianship if there are not paternal relatives. ... the sultan or political leader may serve as the marriage guardian ... only if he is a just man .... Thus the critical factor in selecting an alternative marriage guardian is the man's adherence to justice, not his political position.[7]

Types

In the case of the woman's first marriage the father or paternal grandfather is wali mujbir. In this case, the bride's silence is considered consent.[6] The Hanafi school of Islamic law is unique among madhhab (school of jurisprudence) in recognizing the validity of a marriage where the woman acts on her own behalf and is not represented by a male wali.[8][9][10]

According to the founder of the Malaki school of fiqh, Malik ibn Anas, there are two kinds of custody or guardianship – khassa (specific) and `amma (general). Specific guardianship belongs to the patriarchal lineage – father, grandfather, etc. (explained above). General guardianship "was connected completely with Islam, and every Muslim male". An example of `amma guardianship is where a Muslim man arranges a marriage for a woman who does "not have a father, or other male family members".[11]

At least in the Hanafi school of fiqh, there is a distinction between a Wali ijbar and a wali ikhtiyar. A wali ijbar is a guardian who is "given the power of force" and has the right to arrange the marriage of a woman "without her permission". A wali ikhtiyar does "not have the authority to force", and cannot arrange a marriage without the bride's permission. The marriage requires "a verbal answer" from the potential bride to go ahead.[11]

The founder of the Hanbali school, Ahmad ibn Hanbal, believed that the wali ijbar was the right of the father or, if there was no father of a judge (similar to Malik's position), with other imams that the role of a wali ikhtiyar "could be taken by all kinds of wali", not necessarily a relative on the father's side of the family.[11]

Other "guardians"

While a husband or a mahram are not a wali, they also have "protector" status over women away from marriage. Husbands are sometimes referred to as "guardians" of their wives and families in English language sources.[12][13] At least some Muslims point to Quranic verse Al-Tauba, 9:71 where "awliya", (plural of wali) is translated as "protector", and where protection (according to Ustadha Nasari) involves the presence of a mahram, (unmarriageable male relative) being present whenever an unmarried woman meets the opposite sex and for other issues.[14] His permission is also required for travel in some Muslim countries. In Yemen, as of 2005, women are not legally permitted a passport without the approval of their wali, but are allowed to travel without permission once they have a passport. However law enforcement often disregard this freedom and "restrict a woman's right to travel if her guardian disapproves and reports her to the authorities."[15] In 2013 according to Rothna Begum, of Human Rights Watch, women could not leave their house without her husband's permission, with a few emergency exceptions, such as taking care of ailing parents. In Saudi Arabia, as of 2016, "women may not apply for a passport without male guardian approval and require permission to travel outside the country."[16] (Although according to Human Rights Watch, "male guardianship system remains largely in place" although women are now allowed "to secure their own ID cards" and divorced and widowed women are allowed family cards, and the requirement "that a woman bring a male relative to identify them in court" has been removed.)[16]

Guardianship of the Islamic Jurist

In Shia Islam, Islamic Jurists (faqīh, pl. fuqahā') often take on the duty of wali. Guardianship of the Islamic Jurist, (Persian: ولایت فقیه, Vilayat-e Faqih; Arabic: ولاية الفقيه, Wilayat al-Faqih), is a doctrine asserting that Islam gives Islamic jurists custodianship over people. (This applies to Shia Islam "in the absence of an infallible Imam", i.e. after the 12th Imam had gone into Occultation in 874 CE.)[17] Prior to the Iranian Revolution this referred to guardianship of non-litigious matters (al-omour al-hesbiah)[18] including religious endowments (Waqf),[19] judicial matters,[20] and the property for which no specific person is responsible. With the establishment of the Islamic Republic of Iran which institutionalized the teachings of the Ayatollah Ruhollah Khomeini, most references to Guardianship of the Islamic Jurist referred to the idea that a faqīh should have guardianship over all issues for which Prophet of Islam and Shi'a Imam have responsibility, including how people are governed. This idea of guardianship forms the basis of the Constitution of the Islamic Republic of Iran which calls for a Vali-ye faqih (Guardian Jurist), to serve as the Supreme Leader of the government.[21][22] In the context of Iran, (the only country where this theory is being practiced), Guardianship of the Islamic Jurist is often referred to as "rule by the jurisprudent", "rule of the Islamic jurist", or "Governance of the Jurist".

Saudi Arabia

Human Rights Watch (HRW) documented the Saudi implementation of the wali, mahram and mu'arif system in 2016. HRW stated that "in Saudi Arabia, a woman's life is controlled by a man from birth until death. Every Saudi woman must have a male guardian, normally a father or husband, but in some cases a brother or even a son, who has the power to make a range of critical decisions on her behalf."[23] In the 2010's, Saudi women organised an anti male-guardianship campaign.[24][25]

See also

References

  1. ↑ Robert S. Kramer, Richard A. Lobban Jr., Carolyn Fluehr-Lobban (2013). Historical Dictionary of the Sudan. Historical Dictionaries of Africa (4 ed.). Lanham, Maryland, US: Scarecrow Press, an imprint of Rowman & Littlefield. p. 361. ISBN 978-0-8108-6180-0. Retrieved 2 May 2015. QUBBA. The Arabic name for the tomb of a holy man... A qubba is usually erected over the grave of a holy man identified variously as wali (saint), faki, or shaykh since, according to folk Islam, this is where his baraka [blessings] is believed to be strongest...
  2. 1 2 Hans Wehr, [Arab-English Dictionary] p. 1289
  3. ↑ "World Report 2013 – Saudi Arabia". 2013. Human Rights Watch. Archived from the original on 2014-01-09. Retrieved 22 February 2014.
  4. ↑ al-Munajjid, Muhammad Saalih (General Supervisor) (2006-11-25). "She married without her wali's consent and the marriage contract was done without her being present – islamqa.info". islamqa.info. Retrieved 2017-02-13.
  5. ↑ The Hanafi School and the issue of Wali
  6. 1 2 Sahih Muslim, The Book of Marriage (Kitab Al-Nikah), Book 008, Number 3303.
  7. ↑ DeLong-Bas, Natana J. (2004). Wahhabi Islam: From Revival and Reform to Global Jihad (First ed.). New York: Oxford University Press, US. p. 142. ISBN 0-19-516991-3.
  8. ↑ Fluehr-Lobban, Carolyn (2013-10-15). Islamic Law and Society in the Sudan. Routledge. p. 105. ISBN 9781134540358.
  9. ↑ "The Hanafi School and the issue of Wali". Islamweb. Retrieved 2017-02-13.
  10. ↑ Al-Hibri, Azizah Y. (2005). "The Nature of Islamic Marriage". In Witte, John; Eliza Ellison. Covenant Marriage in Comparative Perspective. William B. Eerdmans Publishing. p. 204. Retrieved 13 February 2017.
  11. 1 2 3 Hasyim, Syafiq (2006). Understanding Women in Islam: An Indonesian Perspective. Equinox Publishing. pp. 104+. Retrieved 16 February 2017.
  12. ↑ "Laws of Men: In Saudi Arabia, women are still assigned male 'guardians' | The GroundTruth Project". The GroundTruth Project. 2014-12-09. Retrieved 2017-02-19.
  13. ↑ "Part 2: The Duties of Men". Al-Islam.org. Retrieved 2017-02-19.
  14. ↑ Ansari, Ustadha Zaynab (2012-09-14). "Confusion on Limits to talking to the opposite sex". IslamQA. Retrieved 2017-02-19.
  15. ↑ Nazir, Sameena; Tomppert, Leigh (2005-01-01). Women's Rights in the Middle East and North Africa: Citizenship and Justice. Rowman & Littlefield. p. 341. ISBN 9780742549920.
  16. 1 2 "Boxed In". Human Rights Watch. 2016-07-16. Retrieved 2017-02-19.
  17. ↑ "What is Wilayat al-Faqih?". Al-Islam.org. Retrieved 2017-02-13.
  18. ↑ "Archived copy". Archived from the original on September 13, 2006. Retrieved August 23, 2006.
  19. ↑ http://english.awqaf.ir/
  20. ↑ Interview: Hamid al-Bayati (May 2003) Archived December 9, 2006, at the Wayback Machine.
  21. ↑ Taking Stock of a Quarter Century of the Islamic Republic of Iran, Wilfried Buchta, Harvard Law School, June 2005, pp. 5–6
  22. ↑ Constitution of the Islamic Republic of Iran, section 8 Archived November 23, 2010, at the Wayback Machine. Article 109 states an essential qualification of "the Leader" is "scholarship, as required for performing the functions of mufti in different fields of fiqh"
  23. ↑ "Boxed In — Women and Saudi Arabia's Male Guardianship System". Human Rights Watch. 2016-07-16. Archived from the original on 2016-08-26. Retrieved 2018-05-22.
  24. ↑ Hawari, Walaa (2011-11-14). "Women intensify campaign against legal guardian". Arab News. Archived from the original on 2012-01-25. Retrieved 2012-01-25.
  25. ↑ "Thousands of Saudis sign petition to end male guardianship of women". The Guardian. 2016-09-26. Archived from the original on 2018-05-21. Retrieved 2018-05-22.
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