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The Guardians Of The Islamic Marriage Contract And The Search For Agency In Twelver Shi’a Jurisprudence

Shaykh Vinay Khetia

Abstract

The legal nature of the Islamic marriage contract and its guardians (‘awliya’al-’aqd) has been a source of discourse among both classical and contemporary Imami jurists1. Although ‘awliya al-’aqd literally means “guardians of the contract,” it is indicative of one or more individuals who have the authority to supervise the contractual matters of any non-wali subject2. This paper will attempt to examine the juristic debate over whether the mature virgin of sound mind (al-bikr al-balighah al-rashidah) is required to have the permission of her wali in order to get married.3

Introduction

Shi’i jurists of various generations have offered different opinions and rulings resulting from the differences that are attached to different streams of hadith and supported by an absence of any direct Qur’anic reference4. That being said, the focus of this study is largely limited to modern-contemporary dis- course (nineteenth to twenty-fist century CE/fourteenth to fifteenth century Ah). This undertaking is potentially substantial as it intends to demonstrate the inner-workings and performative function of the contemporary Imami mujtahid, as he attempts to grapple with intra-Imami ikhtilaf, all the while rendering a ruling on a matter of crucial social-religious importance5.

The primary texts of interest are works of demonstrative jurisprudence (al-fiqh al-istidlal) in which jurists evaluate the textual sources (Qur’an and hadith) through the matrix of usul al-fiqh (principles of jurisprudence) in an effort to deduce a ruling on any shar’i (legal) matter6. These works are often written in the form of commentaries upon earlier legal works such as Shara’i al-Islam (eighth/thirteenth century), or al-’Urwat al-Wuthqa’ (fourteenth/early-twentieth century), which then serve as traditional indicators of ijtihad and discourse among Imami jurists7.

Although the jurists covered in this essay are primarily products of nineteenth to the twenty-first-century seminaries of Najaf and Qum, it becomes clear upon perusal of their work that these jurists make no mistake of recognizing and mentioning the Imami juristic tradition of the past millennia. However, as a part of these works they include the legal opinions of past scholars while being cognizant of the fact that in their role as mujtahids they are not legally bound by the exegesis of those who preceded them.

The implication of this understanding is that, upon examining the juridical tradition, the mujtahid may break with the predominant opinion or choose to reify it. In the event that the jurist parts with the predominant opinion and/or generates a new ruling all together, new legal possibilities and alternative avenues of a conservative or liberal resonance are created for those Shi’is who adhere to the system of imitating the jurist (taqlid). Furthermore, the creation of alternative avenues or rejection of the predominant contemporary outlook has the potential to create instability within the Shi’i legal hierarchy, where the jurist’s credentials and credibility may come into question, in addition to stirring conflict within certain community settings where believers follow different jurists with diametrically opposing rulings8.

Contemporary jurists are of two opinions. The first group requires the consent of the wali (in most cases the father or grandfather), and the second group, the minority, does not require the consent of the wali. In the texts of demonstrative jurisprudence the conclusion of the first group is tashrik (shared agency between father and daughter), and the position of the second group is istiqlal al-bint (agency of the daughter)9. All the texts consulted in this study set out to discover and define istiqlaliyah. The question arises: Why is there not a similar contention and discourse concerning the betrothal of a minor who is, in fact, legally bound by the marriage contract, with no choice in the matter, upon reaching the age of maturity? The lack of contention on this seemingly iniquitous situation is due to the conformity one finds in the corresponding hadith traditions, thus leaving the mujtahid with virtually no legally acceptable avenue of protest10.

By conducting a close textual analysis of Ayatullah al-Sayyid Abul Qasim al-Khu’i’s (d. 1993) Mabani al-’Urwat al-Wuthqa’ (representing the first group) and Ayatullah al-Sayyid Sadiq al-Ruhani’s (b. 1926) Fiqh al-Sadiq (representing the second group), I intend to explore some of the intricacies involved in ijtihad, which includes but is not limited to the hermeneutics of usul al-fiqh and hadith sciences, while showing how these hermeneutical devices affect the eventual fatwa. Second, I will briefly explore the opinions of the four imams of the Sunni school and compare them to the various Shi’i positions. I do this for two reasons:

(1) The Shi’i legal tradition employs the principle of mukhalafat al-’ammah (opposition to the Sunnis) as a means of resolving contradictory reports11 and
(2) Since the four schools are divided among themselves, how effective is mukhalafah li al-’ammah as a tool for re- solving bifurcation?12

An overarching concern throughout this essay is the dilemma surrounding hujjiyah (evidentiary or probative value), namely, which traditions and methodological devices constitute a sufficient degree of hujjiyah. As will be demonstrated, the answer to this question is tortuous and equivocal. lastly, I will attempt to explore the social function of compatibility (kafa’ah) and al-’adl (prohibition from prevention of marriage) and its potential effects on power dynamics in the Islamic family structure13. While I do explore some notions of gender and social conditioning, this paper is chiefly concerned with de- scribing and examining how Imami jurists approach the traditional sources of law (Qur’an, Sunnah, and reason), all the while making use of the elaborate mechanisms and potential of current scholarly exegesis through the live issue of contested notions of agency a propos the marriage contract.

The Hadith Tradition And Juristic Discourse

The Imami akhbar collection is replete with reports advocating three kinds of agency (istiqlaliyah): independence of the father, independence of the daughter, and joint agency14. I intend to show how the copious number of conflicting reports has generated extensive discussions, drawing upon the hermeneutics of usul al-fiqh (principles of jurisprudence) and dirayat al-hadith (the contextual study of hadith) to establish otherwise missing contextual evidences (qara’in), reconcile seemingly disparate traditions (al-jama’), and/or prefer one or more textual or rational evidences over the other (al-tarjih)15.

There are nearly twenty-three istiqlal al-ab traditions found in the four principal Imami hadith compendiums, which unequivocally assert the father’s absolute authority16. Due to their copious number I shall cite two acclaimed reports:

• Ibn Abi Ya’fur - Imam Ja’far al-Sadiq: “do not marry virgin daughters except with their fathers’ permission.”17

• Muhammad b. Muslim - Imam al-Baqir or al-Sadiq: “do not seek the counsel (la tasta’maru) of the jariyah (spinster) when she has two fathers (biological father or paternal grandfather), she has no authority in the presence of her father, and he said: Everyone must seek her counsel (permission) except the father.”18

Both of these traditions emphasize the father’s privileged position within the family structure and enforce normative patriarchy in which only the father will do best for his daughter and no authority shall intervene in this process. Furthermore, hadith compilers such as al-Kulyani (d. 329 Ah), al-Saduq (d. 381 Ah), and even al-Tusi (d. 460 Ah) often arranged and listed the akhbar in such a way to enunciate their own legal position. As Robert Gleave has aptly demonstrated, al-Saduq and al-Kulyani used the traditions as a means of asserting their legal opinions, and I see no predicament in extending and applying Gleave’s analysis to this case19.

Furthermore, Ibn Abi Ya’fur’s tradition is listed first in both furu’ al-kafi and man la yahduruhu al-faqih, which is indicative of their repute and importance. Also, both al-Khu’i and al-Ruhani deem them to be sarih (clear) and sahih (authentic)20.

In fact, I do not hesitate to assert that nearly all Imami scholars consider them, in addition to six or seven others of similar genus, acceptable according to the standards of traditional hadith sciences, not only due to complete isnads (chains of transmission) but also because their reporters include the likes of Muhammad b. Muslim, Zurara b. Ayan, Fudayl b. Yassar, and Ibn Abi Ya’fur, to name but a few.

From a rijal perspective, reports carrying the names of these second-century Shi’i’s are of significant value21. Also, Muhammad b. Muslim’s tradition prohibits ijbar (compulsion) for all guardians except the father, indicating that everyone else is required to seek her permission (yasta’maruha kullu ahadin ma ‘ada al-ab) prior to contracting a marriage on her behalf. The apparent signification of this would imply two things:

(1) The father reserves the right to compel his teenage or young daughter (al-jariyah) into a marriage of his choice, and
(2) That he has a select position within the nuclear and extended familial network22.
To further emphasize paternal agency, al-Khu’i cites a supporting tradition: “none can annul the marriage except the father.23

For al-Khu’i, this tradition is a clear indication that the marriage contract should be a joint venture and a process of consultation between the wali and his subject. But the question remains: Is the father above this call to ishtirak (joint agency)? The answer to this question is no, because the istiqlal al-ab traditions did not prevail for either al-Khu’i or al-Ruhani due to the presence of opposing (mu’arid) traditions. It is at this juncture that the hermeneutics of jurisprudence and hadith become especially pertinent. The following are four examples of mu’arid reports:

• Safwan b. Yahya sought the advice of Musa b. Ja’far (Imam Musa al-Kazim) regarding the marriage of his daughter to his nephew. The Imam said: “go ahead with it, with her satisfaction for surely she has a propen- sity towards it within herself…”24

• Al-Fudala’- Imam Ja’far al-Sadiq: “The woman who controls-owns herself and is not feeble minded and has no guardian over her, she may marry without the permission of her guardian (wali)”25.

• Zurara b. Ay’an - Imam Ja’far al-Sadiq: “If a woman controls her own affairs, [that is] she sells [goods], purchases, she is free, she acts as a witness, and she gives forth from her wealth as she wishes. Then surely her affair is acceptable, she may marry if she so wishes without the permission of her wali. If this is not the case, her marriage is not permissible except with the permission of her wali.26

• Sa’dan b. Muslim - Imam al-Baqir: “There is no harm in the marriage of a virgin if she is content (with the proposal) without the permission of her father.27

Both al-Khu’i and al-Ruhani accepted the third hadith as sarih and sahih. That being said, al-Khu’i combined it with the contents of the previous two reports. This combination or harmonization between reports is described by al-Khu’i as al-jam’ah (reconciliation)28. Consequently, by combining and reconciling them he arrived at the conclusion of al-tashrik (joint agency) in which the father cannot compel his daughter into a marriage without her consent, and she cannot marry without his consent.

Also, in harmonizing these traditions he is not required to reject one group over the other, but to consolidate the two positions; istiqlal al-ab and istiqlal al-bint, thus resulting in ishtirak. Put another way, since both the aforementioned positions stem from “authentic” reports, al-Khu’i essentially harmonizes their content by allowing them to speak to each other by stating that the father does have a position of authority (istiqlal al-ab) to authorize or reject a marriage contract for his virgin daughter, but at the same time the correctness of the ‘aqd (contract) relies upon her willful consent, thereby creating a position of tashrik29.

This shared agency does not prevent her from contracting her own marriage, except that its validity relies upon the father’s consent30. As far as al-Khu’i is concerned, he could only consolidate and rely upon traditions that he regarded as both sahih and sarih, as per his exegetical estimation. Furthermore, for al-Khu’i, the position of joint agency is congruent with the Qur’an, the Sunnah, and stands in opposition to the predominant position of the Sunnis (al-’ammah). Therefore, with these supporting factors he reconciles the traditions and adopt the joint agency position31.

Keeping in mind the nuanced technicalities, joint agency essentially views marriage as a family matter requiring mutual respect between the father-grand- father and the daughter32. In keeping with patriarchal norms, the mother and brother have no legitimate claims to agency in this matter. Furthermore, al-Khu’i’s intermediate position affirms the prevailing opinions of akhbari and usuli Imami jurists, among them al-Hurr al-’Amili (d. 1120 Ah), Yusuf al-Bahrani (d. 1186 Ah), Sayyid Muhsin Hakim, Muhammad Ali Araki, and Sayyid Sistani – al-Khu’i’s own successor and most prominent legal authority in Najaf33. It should also be noted that al-Khu’i’s eventual ruling, akin to that of Sistani, was that the mature virgin of sound mind must seek her father’s permission to get married according to obligatory precaution (ihtiyat wujuban). The validity of the marriage contract relies upon both father’s and daughter’s consent34. Obligatory precaution means that due to a lack of absolute certainty and the presence of clear ikhtilaf, al-Khu’i still considers idhn (consent) to be compulsory; however, in this case his followers are permitted to refer to another mujtahid if they so wish35.

Lastly, germane to the matter of tashrik are the circumstances surrounding the marriage of Ali and Fatimah, of which Shaykh al-Tusi has provided an interesting rendition in his Kitab al-’Amali. It is alleged that upon Ali’s request for Fatimah’s hand, the Prophet told Ali that other men had asked for her hand, but that each time he saw an expression of displeasure on her face (ra’ytu al-kirahah fi wajhiha). Despite this, the Prophet explained to her the religious merits and divine approval of Ali’s proposal. Then, noticing no displeasure (in her facial expressions) he said: “God is great, her silence is her acceptance.”36 This report expresses two notable factors:

(1) The Prophet sought her permission and by doing so set a precedent for Muslims and
(2) By emphasizing Ali’s spiritual attributes he asserted that there was no other suitable or equal (kafu’) partner for her.

Accordingly, this report delineates the importance of kafa’ah and its faith-based characteristics37. Furthermore, if this event is read through the developed notion of Prophetic authority (walayah) in this instance, the Prophet would have had a dual walayah over his daughter both in his capacity as her father and the Prophet. But despite this, he allegedly sought her consent.38

Reports four through six are the primary source of ikhtilaf and site of juristic discourse. What is intended by discourse here is that jurists approach these reports aware that their evidentiary value and authenticity have been debated in the past. Keeping this in mind, both al-Khu’i and al-Ruhani carry out their own evaluation of the material at hand. As will be demonstrated, at this point the ijtihad of the student (al-Ruhani) and that of the teacher (al-Khu’i) part ways.39 There are two reasons for this, so to speak; tashrik would not be viable in light of these two reports, and the istiqlal al-bint position would arguably not exist without them.

Report four is deemed to have a complete chain of narrators, and thus is sahih by rijal standards. That being said, al-Khu’i and al-Ruhani disagree over its evidentiary value (hujjiyah). Put another way, it is the content (matn), at issue, not the sanad, thus emphasizing the importance of both content and chain in the process of demonstrative jurisprudence. Two problematic points arise upon analysis of its content: First, jurists are unsure of the implied meaning (murad) of malakat nafasaha and la mawla ‘alayha40. Similar complications concerning hujjiyah arise upon analysis of other malikah reports, namely, ahadith that allow the malikah woman to marry without the consent of her wali41. On this accord, al-Khu’i questioned its judicial value by stating that malikah, as expressed in this report, could be rendered or interpreted as al-jariyah (free or slave) virgin or non-virgin, hence leaving its application in doubt. Likewise, he is unsure as to what la mawla ‘alayha implies: does it mean she does not have a father, or rather, that there is no guardian in general? Therefore, by variegating the hadith’s intended meaning he renders it sahih but ghayri sarih (unclear), and mutlaqah (having a general and unrestricted meaning)42.

The primary reason al-Khu’i rejected the hujjiyah of these reports is because, in his view, the istiqlal al-ab and tashrik reports are sarih and sahih and numerous, as opposed to the malikah reports which are sparse in number and lack linguistic clarity. likewise, al-Ruhani admits that the re- port is open to the same questions posed by al-Khu’i, but nevertheless insists that it is possible to interpret it as applying to the virgin (who controls her own affairs) and, second, la mawla ‘alayha could include her father thus rendering mawla in a generic fashion.

But the question remains: how do we interpret malakat nafsaha? Put differently, does her right to enter into a marriage contract without her guardian’s (father or grandfather) consent may only take effect in the absence of her wali? Or conversely, does her authority over the marriage contract remains even in the presence of her guardian, thus not obliging her to seek con- sent to ensure the marriage’s validity (siha)?43 In the view of al-Ruhani the answer is the latter, since he cites report five in an effort to shed further light upon the contested murad of malikiyah al-’amr44. The transmission from Zurara in the fifth report refers to the woman who controls her own affairs, engages in commerce, is a free woman (Hurrah), and is financially independent. The three aforementioned functions serve to clarify the contested notion of a woman’s malkiyah.

Further, this tradition is of paramount importance in not only qualifying the virgin’s agency in concrete terms, but also allowing her to demonstrate her independence by partaking in the mentioned activities (e.g., buying, selling, and witnessing) that constitute malikiyat al-’amr. Therefore, in the view of such scholars as al-Ruhani this report acts as a takhsis (specification) of the previous khabar. Put another way, it has the potential to further clarify and define a contested murad, albeit the empowered woman in this report could be equally a virgin or non-virgin. Regardless, it sheds light on the function of malikiyah.

Aside from the report being ghayri sarih, al-Khu’i considers the chain of narrators to be da’if (weak)45. In the Mabani al-’Urwa, he rejects this report on two grounds:
(1) He claims that he is unaware by which chain al-Tusi has transmitted from Ali b. Isma’il, although it is probable that he used the same sanad as Saduq, and
(2) The reporter in question, Ali b. Isma’il, has not been authenticated46. Adam tawthiq (absence of authentication) means that he is not known to have been among the principle sources or mashayakh listed in the hadith books that have been authenticated, despite the fact that he is described as one of the earliest Imami-Badran theologians of the mid-second century hijri47.

Instances such as this demonstrate how al-Khu’i implements the enterprise of hadith-rijal analysis and hermeneutics as way to reject the sanad of a report that has otherwise been accepted as authentic by the majority of his predecessors and contemporaries48.

The sixth report is the most sarih of all the mu’arid reports, as it clearly delineates that the virgin may marry whom she wills, provided that she is con- tent (radiyat). However, despite its apparent clarity, its chain of transmission has been scrutinized by Imami fuqaha’49. Several of al-Khu’i’s contemporaries consider the principal transmitter, Sa’dan b. Muslim to be unauthenticated and majhul (unknown) and, as result, the report is by and large deemed be da’if50. Al-Khu’i, being cognizant of this, nevertheless stipulates that his reason for rejecting this khabar is not due to Sa’dan. In fact, al-Khu’i authenticates him by employing general authentication (tawthiqat al-’ammah) because Sa’dan is listed in the isnads used by Ali b. Ibrahim al-Qummi (d. 310 Ah) in his tafsir and Ja’far b. Muhammad b. Qawlawayh (d. 369 Ah) in his Kamil al-Ziyarat51. That being said, it should be noted that al-Khu’i altered his position toward the end of his life, when he only authenticated the mashayikh (teachers) of Ibn Qawlawayh and Ali b. Ibrahim al-Qummi52.

However, in addition to Sa’dan being unauthenticated, al-Khu’i rejects the report by claiming that Sa’dan never transmitted any traditions to Abbas b. Ma’ruf, the second reporter in the chain hadith. On this note, al-Ruhani vehemently disagrees with his colleagues and claims that the charge of ‘adam al-tawthiq (absence of authentication) with regards to Sa’dan is without merit and the remaining part of the chain is in order53.

Furthermore, the biographical works allege that Abbas b. Ma’ruf was a companion of the Eighth Imam (Ali b. Musa al-Rida’), thus leaving the period of the Seventh Imam remaining in between and leaving open the possibility that Abbas b. Ma’ruf may very well have transmitted from Sa’dan. This tradition serves as the axis upon which the discourse of istiqlal al-bint revolves, due to it being the only clearly worded and “authentic” report of its kind54. Consequently it is of unquestionable importance for al-Ruhani to authenticate its text and chain, and by doing so he lends it a credible degree of hujjiyah.

The evaluation of the aforementioned hadith traditions, reveal the nuances and performative nature of dirayat al-hadith. Put another way, hadith analysis and its usage as a means of istinbat depends largely upon the individual mujtahid’s hermeneutical and rational assumptions. Moreover, the act of istinbat al-ahkam is the performance of careful and judicious ijtihad in which the mujtahid uses the necessary hermeneutical tools to validate his eventual conclusions. This validation is especially important for al-Ruhani, as his exegesis of the hadith and eventual conclusions represent a dissent from the predominant view of his colleagues.

Lastly, the complex and conflicting methods of hadith analysis are reflective of a highly advanced discourse with similar but not entirely parallel hermeneutical concerns in the pre-modern juristic tradition, as reflected in the works of al-Sayyid al-Murtada (d. 436 Ah), Muhaqqiq (d. 672 Ah), Allamah al-Hilli (d. 648 Ah), and Shahid al-Thani (d. 966 Ah).

One example of divergence can be seen in the approach to the hadith tradition. Whereas previous scholars such as al-Tusi and al-Murtada considered the question of authenticity, contemporary dirayat al-hadith raises a greater number of concerns regarding both these reports’ content and transmitters. In other words, as the discipline of hadith has evolved, the criticism and analysis has become sharper and more detailed55.

On the same note, it has been shown that this development prompted jurists such as al-Khu’i to implement creative hermeneutics of authentication (tawthiq) and de-authentication of certain rijal over others. Another example is that contemporary Imami jurists discuss the hermeneutics surrounding juristic preference and combination of reports as a way to resolve the ikhtilaf on this legal issue, whereas medieval Imami jurists such as Allama al-Hilli did not raise the same concerns while attempting to contend with the ikhtilaf concerning the al-bikr al-balighah al-rashidah56.

Juristic Preference (Al-Tarjih) And Opposition To The Sunnis (Mukhalafah Li Al-’Ammah)

Juristic preference is the process of selecting one or a group of traditions with similar or identical content over all others57. Unlike Sayyid al-Khu’i and most others, al-Ruhani stipulates that upon realizing the impossibility of reconciling (‘adam imkan al-jama’) the istiqlal al-ab with istiqlal al-bint reports he decided to prefer the istiqlal al-bint reports above all others58. Thus in this case there are essentially three important factors to keep in mind; ideally the preference must be in accordance with the Qur’an and Sunnah, and be in opposition to the Sunnis59. To assert his tarjih, al-Ruhani uses two hermeneutical devices in addition to the Qur’an: al-shuhra al-fatwa’iyah (the prevailing or most familiar legal judgment), and qa’adat tasalut al-nas ‘ala anfusihim (principle of governance over oneself)60. As will be demonstrated, neither principle is traditionally among the murajjihat (the established criteria for the preponderance of one tradition over another)61.

In the case of shuhra, al-Ruhani asserts that the prevailing juristic opinions of past scholars have been istiqlal al-bint, namely, the mentally mature virgin does not require her wali’s permission to get married. He also cites Sayyid al-Murtada’s claim that there is a consensus (ijma’) on this matter. Consequently, by implementing shuhra, he is vesting the legal opinions of the past with a considerable degree of hujjiyah and implementing it as a part of his ijtihad62. Although a comprehensive examination of the opinions of al-Murtada and his Imami colleagues is beyond the scope of this study, al-Ruhani is not far-fetched in claiming that istiqlal al-bint position was a predominant one among major thinkers such as al-Murtada and Allamah al-Hilli63.

That being said, one would be hard pressed to characterize it as constituting the overwhelming position of both the qudama’ (early scholars) and the muta’akhkhirun (later scholars)64. Put differently, upon careful assessment of the Imami legal tradition from al-Saduq onward it would be hard to assert that this position is the most prominent one65. Furthermore, how are we to understand Sayyid al-Murtada’s claim that the Imami jurists have an ijma’ al-taifa (group consensus) regarding istiqlal al-bikr to begin with?

Perhaps al-Murtada’ used the term ijma’ to indicate the collective opinion of himself and those present within his scholarly circle. however, even in this case it cannot be known for certain whether his own esteemed instructor Shaykh al-Mufid (d. 413 Ah) and the most senior student, Shaykh al-Tusi (d. 459 Ah) would be included in this claim to consensus since they are alleged to have both held the position of istiqlal al-ab.

Furthermore, both al-Mufid and al-Tusi are said to have preferred the compromise position of tashrik even if the daughter can show the ability to care for her own affairs66. This puzzlement arises from the fact that between the Nihaya, Mabsut, and the Tibyan, al-Tusi is said to have held the istiqlal al-ab, tashrik and the istiqlal al-bint positions, although Ibn Idris al-Hilli claims that al-Tusi retracted his initial ruling of istiqlal al-ab as stated in the Nihaya, only to give complete agency to the bikr, as cited in the Tibyan, which Ibn Idris alleges was his final work and reflective of his final opinion. However this claim is also somewhat dubious67.

In the case of al-Mufid we encounter a similar uncertainty because ac- cording to his most infamous work on substantive jurisprudence, the Muqni’a, he states clearly that not only does the daughter require her father’s permission prior to marriage, but the validity of the marriage contract hinges upon his consent alone. Conversely in a treatise attributed to him, Ahkam al-Nisa’, al- Mufid states that if the daughter were to marry without her father’s permission, such a marriage would be in violation of the established practice (al-sunnah) of the Infallibles but nonetheless valid (madiyan)68. Once again, there is no compelling textual evidence to give absolute preference to one of these opinions over the other69.

Nevertheless, al-Ruhani contradicts himself at the very beginning of his discussion where he claims that istiqlal al-ab wa al-jadd to also be the prevailing position among the earlier scholars70. Furthermore, al-Khu’i was explicit in his rejection of al-shuhra l-fatwa’iyah: “Aside from the most prevalent authentic and unauthentic traditions on a given subject, there is no other type of shuhra when attempting to implement juristic preference.71” In other words, the only kind of prevailing position or shuhra a jurist can hold fast to is that which is based on the consensus of the Imams’ companions. But even in this case, it must be grounded upon a confirmed chain of narrators72.

This is reflective of al-Khu’i’s general concern and emphasis on discovering textual evidence, rather than predominant legal rulings of past jurists that, for him, do not constitute substantial enough evidence for tarjih. This is also indicative of al-Khu’i’s belief that the opinions of previous scholars, including any claims to ijma’, should be considered but do not have significant probative value unless they unveil the opinion of an Infallible (kashif ‘an ra’i al-ma’sum). In the absence of this, these claims are to be considered to be al-nazar (speculation)73.

Interestingly enough, al-Ruhani expresses a similar theoretical sentiment with regards to both al-shuhra and al-ijma’. In fact he states that al-shuhra al-fatawaiyya is the weakest form of shuhra, for it is one in which the jurist is not aware of the basis of the prevailing ruling. Furthermore in the case of its implementation as a means of juristic preference, the fatwa must, with perceptible certainty (hass), be grounded upon a transmission from an infallible and not arbitrary opinion (rayi)74.

Despite the seeming theoretical congruity, the significant practical cleavage between these two Imami mujtahids indicates the subjective nature of elements of usul al-fiqh, especially when it comes to the importance given to applying precedence to resolve a bifurcation in the tradition. For al-Ruhani, his perception of an overwhelming precedence of istiqlal al-bint fatawa’ issued from such prominent authorities such as Sayyid al-Murtada’ and Allamah al-Hilli is enough to vest the position with a weighty probative value, especially due to their close proximity to the period of the Imams and their companions in comparison to himself.

For al-Khu’i and others, such as Muhammad Rida Muzaffar, a mujtahid’s reliance (ta’wil) upon another jurist’s rulings defeats the purpose of ijtihad, because according to their logic a mujtahid is a scholar who can perform istinbat (extracting rulings from their sources), thus negating the purpose of imitating earlier scholars75. Consequently, one can say that the question of walayah over the pubescent virgin is a question of competing earlier visions bringing forth the contested role that legal precedent plays in Imami demonstrative jurisprudence.

Al-Ruhani uses the second device, qa’adat tasalut al-nas ‘ala anfusihim, as a form of sunnah and thus claims that based on this principle istiqlal al-bikr is in complete conformity with the sunnah. It should be mentioned that according to the texts of qawa’id fiqhiyah (legal maxims) there is no direct nass (explicit textual rulings) to support this principle76. Being fully aware of this, he cites ijma’ in order to establish it as an absolute sunnah (al-sunnah al-qatiyah), a matter of established practice beyond doubt supported, in principle, by the Qur’an and/or the Fourteen Infallibles77.

Upon further examination, due to the absence of a direct nass, the contiguous juristic principles would be “the freedom to spend one’s wealth as he or she wishes” and “no harm or injury” (la darar wa la dirar). In other words, the jurist may extend the implications of these principles to serve as support for tasalat al-nas due to absence of a direct nass78. Although there may be no direct textual indicator, jurists describe tasalut al-nas ‘ala anfusihim as an overarching ‘aqli (rational) and fitri (instinctual) concept that posits that humans and some animals have the freedom over their own bodies and hence have the right to act in their best interest79. Furthermore, he claims this sultanah over one’s person is complete (tamma) and absolute (mutlaqah)80.

As liberal and contemporary as this statement may seem, it is ripe with incongruity and essentialism for the simple reason that Islamic law gives much greater preference to responsibilities than to rights. In the Imami legal and doctrinal view, the rights of God, the Prophet, and the Imams outweigh the rights of the individual.

Furthermore, his scenario has the potential to raise some foundational questions: If a virgin woman is free to marry whom she wills without her father’s consent, then by the same token of tasalut al-nas ‘ala anfusihim should she not have the freedom to divorce as she wishes or donate her organs? But the reality is that al-Ruhani is inconsistent and does not implement this principle as a way to allow either freedom81.

That being said, al-Khu’i would certainly have rejected the principle of sultanah ‘ala al-nafs (governance over the self) because, according to his understanding, an ‘aqli ijma’ of this type is not among the murajjihat82. Furthermore, al-Iraqi noted that a principle such as the freedom over one’s person is a general overarching concept (‘umum) that cannot be included in the form of a condition (shart) as a part of a marriage or financial contract. Hence, it has no applicability in this context83.

The debate and discourse over the applicability of such a principle in the context of marriage demonstrates the ever-present tension between al-’aql and al-naql: just how far can a mujtahid extend and apply rational-philosophical concepts in the absence of a muhkam (authoritative) hadith report? The answer is beyond the scope of this study and by no means straightforward, as it depends upon the individual mujtahid’s hermeneutical, epistemological, and social outlook. Nevertheless, the above analysis reveals the variegated nature of contemporary Imami usul al-fiqh and the lengths to which jurists implement hermeneutical devices in order to resolve ikhtilaf.

The second element of an ideal tarjih should ideally be muwafaq bi al-kitab (that which is congruent with the Qur’an)84. In this case, the Qur’an does not mention the guardian and the virgin; however, the itlaqat (general dispensation) of the verses forbid the guardian to prevent the divorced woman from marrying whom she wills or return to her husband after her waiting period ends85. al-Ruhani does not explore the verses in detail at all, but instead lists them as supporting evidence keeping in mind that they can be understood as general guidelines and not as having any specific and particular (muqayyid) evidentiary value. Although he does not explore these verses in detail, Muhammad Jawad Mughniyyah has done so in his Tafsir al-Kashif under the exegetical rubric of Q. 2:232:

“And when you have divorced the women and they have ended their term (of waiting) then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner…(2:232)86

Although this verse concerns divorced women, Mughniyyah attempts to build a case for the virgin by stating that if she behaves in a way that demonstrates her maturity and ability to distinguish right from wrong, then she should have the right to decide what is best for her without outside interference. He contends that the guardianship surrounding marriage should be similar to other matters, that is, if she is independent (mustaqillah) in her other life affairs (e.g. education and wealth), then likewise she should be free to choose her own husband. This line of argumentation essentially draws upon rational-ethical ideals to extract hujjiyah from an otherwise mutlaq verse87.

The final element of juristic preference is mukhalafah li al ‘ammah (opposition to Sunnis), in which the Imami jurist resolves an apparent contradiction by choosing the position that does not conform to the view(s) of Sunnis. Implementing this principle serves two purposes:

(1) It affirms Imami sectarian identity as a legal school (madhhab) and devalues the views of the “other” and
(2) Enables Imami jurists to conveniently resolve contradictions within their own tradition by claiming that since the Infallibles (ma’sumun) cannot contradict themselves or each other, those apparent contradictions must be as a result of dissimulation88.

Thus in the event of contradictory reports, those reports which resemble the position of non-Shi’a must have been verbalized under duress by the Imam to protect himself and his followers by not attracting any undue attention from those who would wish them harm89. Keeping this in mind, both al-Khu’i and al-Ruhani claim their positions oppose the majority (mashhur) Sunni position. In the case of al-Khu’i, the tashrik position would be mukhalaf to al-Shafi’i and Malik, who state that a father is not required to seek the permission of his virgin intellectually sound (al-’aqilah) daughter, but that it would be preferable if he did so90.

As straightforward as this may seem, this mas’alah (case) is also a point of tension for al-Shafi’i and Malik. Al-Shafi’i is confronted with the traditions stressing the father’s authority on one hand and Prophetic practice of seeking the virgin’s idhn on the other. As a result, he recommends that the father seek her consent and take care not to select a partner displeasing to her91. Malik preferred the predominant Madinan custom, where al-Qasim b. Muhammad and Salim b. Abd Allah would give their virgin daughters in marriage without seeking their consent92. Muhammad Fadel argues that although this position has been ascribed to Malik, the father’s role and function is not clear cut and, in reality, the virgin can circumvent jabr and even contract a marriage without the guardian’s consent.

As ideal as this may seem, one should keep in mind that this is a “reinterpretation” of Maliki law and not the predominant view93. While al-Khu’i’s conclusion is in line with the majority of his colleagues, it is also mukhalaf to the opinions of al-Saduq, Ibn Abi ‘Aqil, and al-Tusi who, like Malik and al-Shafi’i, allow the father to compel his virgin daughter to marry94. Furthermore, Ibn Rushd also states that the Sunni jurists disagree as to whether the guardian’s idhn is a condition for a valid marriage95.

Aside from the Hanafis, Sunni jurists extend guardianship to the eldest brother, paternal uncle, and, in the event of their absence, the state96. This demonstrates that the opinions of Malik and al-Shafi’i were by no means monolithic and that the Sunni positions are also wrought with ilkhtilaf and debate over hujjiyat al-akhbar and the practice of the Tabi’un.

Among the four Sunni imams it is alleged that only Abu Hanifah did not require the pubertal virgin woman to seek her father’s permission, although he deemed it would be preferable (mustahabb) for her to do so97. He supports this ruling by using the Qur’anic verses previously mentioned, supported by logical reasoning, that essentially states that if a woman is intellectually sound (al-’aqilah) and her behavior (tasarruf) demonstrates her independence, then she should be given the agency to contract her own marriage98.

Furthermore, an often overlooked similarity between the Imami ikhtilaf and that of their Sunni counterparts is the conflict over the inferred ‘illa (ratio legis). As it were, by means of speculative reasoning (al-’aql) and ijtihad, Abu Hanifah held that it is the minority (lack of bulugh) that is the ratio legis behind allowing the father to compel his minor daughter or son to marry. On the other hand, al-Malik and al-Shafi’i held that the inferred illa was not her minority but her virginity; so long as she is a virgin the guardians have walayah al-ijbar (coercive guardianship)99. Ijbar can be described as a form of coercive force in which the father may marry off (al-inkah) his virgin daughter (pubescent or otherwise)100.

The Imami madhhab continues to disagree over the inferred ‘illa as well. In fact, this is why Sayyid al-Murtada’ clearly points out that Abu Hanifah’s position is muwafaq with what he perceived to be the Imami consensus (ijma’) or collective understanding, that is istiqlal al-bikr101. Furthermore, a similar rationale led Muhaqqiq al-Hilli and al-Allama al-Hilli to assert the very same position as al-Murtada’, contrary to the alleged tashrik positions of al-Tusi and al-Mufid, in addition to later medieval jurists such as Zayn al-Din al-’Amili (al-Shahid al-Thani)102.

Correspondingly, while such contemporary Imami jurists as al-Khu’i, Sistani, and others do not permit walayat al-ijbar upon the bikr balighah rashidah, they also do not allow her to marry without her father’s permission due to her virginity, even if she is rashidah (mentally sound and mature), because that is the governing ‘illa for the ruling. The essential distinction to be made here is that the father is not in a position to coerce his virgin daughter into marriage, hence ijbar is not permitted.

In contrast, al-Ruhani, Mughniyyah, and Fadlallah do not require her to seek her guardian’s permission because the operative ‘illa for their ruling is bulugh (majority) and lack of safah (immaturity of mind)103. Allama al-Hilli sums up the prevailing position of legal-philosophical divergence in a concise and pointed manner:

“If the free woman is of physical and mental maturity (balighah rashidah) she becomes empowered by means of her pubescence and mental maturity (rushdiha) in all aspects of her behavior (jami’ al-tasarrufat) with regards to contracts (entering into contracts) and other than that – (this is a matter) of consensus (ijma’) among scholars collectively except for the act of marriage (al-nikah).”104

The ikhtilaf among the Imamis at least since the period of al-Mufid and al-Murtada’, rests on analogy, whether the jurists can create a direct link between her ability to maturely and correctly enter into contracts of a financial nature or otherwise, and that of marriage. Can they legally and philosophically group them together? For those who do not discriminate between the various tasarrufat, the question of disallowing parental coercive authority is not an issue because the virginal but pubescent girl is not legally required to seek her father’s permission, let alone being subject to coercive authority, for she has demonstrated that she is mentally mature and able to independently conduct her affairs without recourse to any parental authority or otherwise.

Turing back to the jurisprudential process of tarjih (preference) or jam’ah (reconciliation), as useful as mukhalafah li al-’ammah may seem in its function as a hermeneutical tool, its functional application in this context is secondary at least due to the divergence of opinions both among Imamis and Sunnites. In the context of this mas’alah Shaykh al-Araki states that “in light of the contradictory aqwal (statements and rulings) of the Sunnis it is not possible for us to carry out tarjih from this point of view.105

Furthermore, an often overlooked line of reasoning among traditional Imami mujtahids here is that the ikhtilaf within the Imami akhbar could be a result of extra-Imami influences. Put another way, in the midst of sectarian disputes and dialogue both in Kufa and Madinah, it is inevitable that some Imamis would have transmitted and presented their own legal opinion while claiming to have heard it directly from the Imam. There is no conclusive evidence to support this, but Maria Dakake has aptly demonstrated that many Imami theological positions of the second Islamic century were evidently influenced by Hanafi-Murji’i doctrine of ijra’ (postponement of judgment)106. Hence, in the process of debate and dialogue it is certainly possible, if not a foregone conclusion, that Muslims in fact influenced one another107.

This is not to say that the Hanafi position was the only influencing factor behind the proliferation of istiqlal al-bint traditions, such as the one reported from Ja’far al-Sadiq through Sa’dan b. Muslim or the malikah traditions transmitted by Zurara. Further yet, it could be asserted that Abu Hanifah and other Sunnis drew upon the traditions, either directly from the Fifth or Sixth Shi’i Imam, or indirectly through a transmitter. This scenario is not entirely implausible, for the Imami hadith creates analogies between a woman’s ability to carry out various financial transactions and to contract a marriage on her own. If a woman possesses these characteristics and abilities, she should be given the freedom to marry without her guardian’s consent. Consequently, the Imami oral tradition asserting the daughter’s agency would have been seemingly more alluring to Abu Hanifah as opposed to the nearly exclusive istiqlal al-ab traditions circulating among non-Imamis during this period.

It should be noted, however, that all of these hypotheses hinge upon the notion that a portion of the istiqlal al-bint traditions can be ascribed to Imams al-Baqir or al-Sadiq and their accurate transmission from disciples such as Zurara b. ‘Ayan, only to be included in the Imami hadith collection some 150 years later. Nevertheless, traditional scholars should not overlook the correlation between the jurisprudential dialectics of the formative period (second- third century AH) coinciding with the origin (sudur) of the conflicting akhbar attributed to the Fifth and Sixth Shi’i Imams, especially in the case of this mas’alah.108

That being said, mujtahids contemporary to al-Khu’i, such as Ayatullah Muhammad Ali Araki (d. 1994), are not sure as to when the conflicting Sunni position took shape. The reason for this concern is that ideally, in order for mukhalafah li al-’ammah to be useful, it must be mukhalaf at the time of transmission and not retroactively. Therefore, the principle of opposing the Sunnis is not as simple as it may seem. There are complications and nuances involved that are often not mentioned at all by jurists due to their lack of cognizance or their far-reaching ideological commitment to their usuli principles. Be that as it may, the probability of cross-pollination should not be ignored.

Kafa’at Al-’Adl, And Power Dynamics In The Islamic Family Structure

Wael Hallaq describes the guardian’s role as seeking the best interest of the family and its daughters. He adds: “Marriage was not an individualistic venture but a family matter”109. His characterization is accurate and is equally compatible with the outlook of Imami law. This is why all of the Imami legal texts consulted in this study emphasize two things – respect owed to the biological father and the need for mutual consultation, despite the mujtahid’s eventual legal position. Even if he confirms the walayah over the virgin, there is an emphasis upon mutual respect between father and daughter110. Therefore al-Ruhani deemed it mustahabb (preferable) that the daughter seek her father’s permission before getting married111..

Keeping this in mind, jurists have included two variable factors to be considered during the marriage proceedings: kafa’ah, and al-’adl. Kafa’ah (compatibility or suitability) is a prerequisite for the validity of the marriage contract. If a father attempts to compel his virgin daughter to marry, even though if it can be proven that the prospective spouse is not suitable for or compatible with her, she can opt out of the marriage. Likewise, if the father prevents her from marrying a man who satisfies the requirement of kafa’ah, his agency is terminated and the woman may marry without his consent112.

Such stipulations indicate a cognizance on the part of jurists that paternal men do not always live up to their role in looking out for their female charges’ best interest113. This is the overwhelming opinion of Imami jurists, including such past jurists as al-Tusi and Muhaqqiq al-Hilli114.

That being said, these caveats raise two important questions: What are the parameters of suitability, and how does one identify a case of al-’adl? Upon browsing the ahadith, one gets the impression that the equal partner should be righteous, not drink alcohol, be sound of mind, and have an affinity toward the family of the Prophet or preferably be Shi’i115. These are generally considered to be shar’i descriptions of equality or compatibility. ‘Urf (common view) definitions of kafa’ah would be open to even greater interpretation but can include: genealogy (nasab), socioeconomic class, and physical attraction. It immediately becomes apparent that suitability, equality, and compatibility in a partner can rest in the eye of the beholder, that is, provided the general legal guidelines are met, a father would find it hard to prevent his virgin daughter’s marriage116.

Once again, as the legal literature stresses, it is the woman who will be spending the rest of her life with that man; hence in her view he should be compatible117. Thus both past and present Imami jurists have used strong language when it comes to al-’adl (prevention of marriage). one such example is Muhaqqiq al-Hilli’s statement:

“If the guardian prevents her (his daughter) from marrying and is not marrying her to someone of equitable status according to her wish, in that case it is permissible for her to marry even if he dislikes her (doing so). This is a matter of consensus.”118

By doing so, they are attempting to communicate that agency is not some form of blind power but an intelligent authority. Within this dynamic, both the daughter and the father have certain responsibilities: the father must take care to not hastily accept or reject a marriage proposal, and the daughter should take into account the protective nature of her father’s authority and the emphasis placed upon cordial and respectful conduct.

The legal literature is complex and replete with nuanced language known primarily to those acquainted with this literature. However, within this process the jurists have expressed pastoral concerns of family unity and cordial relations between family members. Pastoral concerns such family unity and normative patriarchy, reflect the influential social factors present in juristic literature. These social factors, although highlighted in the hadith tradition, can also be a product of common view (‘urf) taken into account by the mujtahid when rendering his ruling119.

When scholars such as al-Ruhani and Mughniyyah dissent from the normative outlook, they lend a potential socially destabilizing agency to the bikr. Because they challenge the normative patriarchal power structure in which the father reigns supreme. Furthermore, the purpose of including these two caveats is to remind all those involved that they have certain rights and responsibilities, so they should be foremost concerned with preventing any undue hardship upon the bikr120. Once again, terms such as undue hardship (haraj) yield an array of interpretations relying upon one’s evaluation of their individual situation.

To sum up, the pastoral concerns expressed by various scholars indicate their concern for emphasizing what they view to be the spirit of the law, which leans toward an Islamically conditioned individualism that entails a sincere young religious woman deserving of a sincere religious man. The role of patriarchal communalism should ideally be reserved for ensuring that, above and beyond any other concern, the daughter’s religio-spiritual wellbeing must come first. A strict reading of the rulings independently do not always communicate these underlying concerns of those who wield authority in the Imami tradition, and it is for this reason that compatibility and other social-ethical imperatives are emphasized in addition to the literal wording of the fatwa or legal recommendation.

Conclusion

In this paper I investigated the process of deducing legal rulings from their sources using the live issue of guardianship and the marriage contract. I analyzed the relevant ahadith and their variant interpretations, interpretations that involved a nuanced, if not an abstruse, line of arguments, chiefly semantic, aimed at either accepting or rejecting the evidentiary value of a hadith report. These reports’ rejection or acceptance determined the eventual rulings of both Ayatullah Sayyid Abul Qasim al-Khu’i and Ayatullah Sayyid Muhammad Sadiq al-Ruhani in which they selected and sifted and, in the case of al-Khu’i, combined ahadith.

Naturally, this raises questions concerning the epistemological position of the mujtahids in their approach to the text: did they interpret the reports in a way designed to reach the desired predetermined conclusion? An affirmative answer would essentially entail that the mujtahid manipulates the texts by means of exegesis for his own aims121.

While this would be an unfair and sweeping characterization, it is not farfetched to assume that a mujtahid’s hermeneutical disposition and conviction certainly affects the outcome of his ijtihad. Even before he approaches a mas’alah, he has already decided how to authenticate or de-authenticate a certain sanad, or which usuli principles he may prefer over others while interpreting the matn122. This predetermined hermeneutical disposition influences how he approaches the question of hujjiyah, for that which one faqih may consider to have probative value may not be viewed in the same light by another. The divergent hermeneutical dispositions of al-Khu’i and al-Ruhani allowed them to both carry out ijtihad but arrive are different conclusions.

Since al-Ruhani could not combine or harmonize the traditions, he chose to prefer one set over the other (tarjih). In doing so, he relied upon what he perceived to be the predominant position of both early and later Imami jurists. He also invoked sultanat al-nas ‘ala anfusihim (human authority over one’s self). In this context, neither of these principles is widely accepted by Imami jurists when used to support a juristic preference; however, the latter is cautiously included as one of the jurisprudential maxims (qawa’id al-fiqhiyah). Al-Ruhani’s usage of a theoretical principle of this nature challenges the dominion of traditional hermeneutics, and by invoking such concepts as human freedom within this context he opens the door to multiple foundational questions, such as: how does one limit and/or apply such a principle, and who determines how and when it is used? Or as Makarem al-Shirazi states, the principle of human freedom to govern themselves must be limited by the Shari’ah, otherwise, it would not make any sense.123

However, in light of intra-Imami ikhtilaf on the matter of the virgin and her agency, al-Ruhani and others, such as Mughniyyah, are free to break loose from their contemporaries’ conservative patterns and invoke the principle of human freedom to justify their dissent from the norm of tashrik. This clearly demonstrates the variegated and nuanced nature of the principles of jurisprudence and istinbat al-ahkam (deduction of rulings from their sources).

In addition to this, both groups of scholars attempted to juxtapose their positions in opposition to those of the Sunnis (mukhalfat al-’ammah) to further support their respective rulings. The operative value of this hermeneutical device is multifarious, at least in light of intra-Imami ikhtilaf and the ambivalent positions among the four Sunni imams.

To sum up, there are two contemporary Imami positions:

(1) tashrik, held by al-Khu’i and the majority of contemporary Imami jurists, which states that by obligatory precaution the virgin daughter of mature mind must seek her father’s permission or, in his absence, that of the paternal grandfather before getting married. Furthermore, the validity of the marriage contract relies upon both the father’s and the daughter’s consent and

(2) istiqlal al-bint, held by al-al-Ruhani and Mughniyyah, which states that the virgin mature daughter is not required to seek her father’s permission to get married, although it is recommended that she do so, and the validity of the marriage contract does not rely upon her father’s consent. The analysis of the hadith traditions and the methodological tools of usul al-fiqh show that, at least within this context, jurists confront a dilemma of hujjiyah and have gone to great lengths to establish the viability of their respective conclusions via hadith, legal precedent, and, at times, broad-spectrum philosophical principles.

Lastly, I examined the two caveats of al-kafa’ah (equality or compatibility) and al-’adl (prevention of marriage by the guardian). Both of these fore-warnings have been inserted into the rulings governing the virgin’s marriage to express pastoral concerns dealing with family unity, the father’s socio- religious precedence, and the need to prevent any undue harm or injury to the virgin girl or woman. In light of modern realities and the perceptible financially and intellectually independent Muslim woman in both the Muslim world and the “West,” Muslim jurists will be forced to better explain and justify the laws governing agency and the marriage contract.

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Discussion

Discussant: Mahmoud Ayoub

These are real, not just theoretical, issues. Whatever the jurists say among themselves, the people in southern Lebanon are not aware of it and the father assumes complete authority. If the daughter does not submit, she will get the beating of her life. There have been cases where daughters asked to consent have refused, even if it meant they would be killed … and some have been. You can attribute whatever you want to taqiyah, so it is not a helpful tool. The clear injunction of Ja’far al-Sadiq is that the Shi’a may not turn to Sunni scholars. Anyway, there is no ijma’ among the Sunnis. We have no choice but to give people authority over themselves. The Lebanese scholar Shamsuddin wrote that the ideal state of the righteous caliphs is impossible today, as is the divine rule of the infallible Imam, and thus people must have authority over their own affairs. This minimizes the jurists’ authority over people in their own affairs. Wilayat al-faqih is not a new concept. It goes back to the Twelfth Imam; however, it was a moral and juridical authority. All Khomeini did was add a political aspect, which led to the Iran of today. I believe that two kinds of people should never be allowed to rule: the military and the religious. Ja’far al-Sadiq said: “The scholars are God’s trustees over his revelation until they knock at the doors of the ruling authority; when they do, suspect them.” I ask, then, what happens when the ulama themselves become the ruling authority?

Discussant: Mohamed Adam El-Sheikh

This is my first opportunity to learn about the Shi’a schools. According to the Sunnah, by my own investigation it has not reached that level. All the hadith on this subject have some defect, even the most commonly applied ones. According to Imam Malik, the ability of the guardian to force belongs to the father or grandfather, or, if they are not present, to another man from the father’s side. It might be justified because daughters or sisters were pledged to marriage at a very early age, thirteen or fourteen, and were unable to negotiate their dowries or conditions. Thus it was for the protection of minors. In Egypt or my own country of Sudan – even though it is Maliki in other respects – people now adopt Abu Hanifah’s position as being well thought out. His opinion is also applied in America: A woman of mature mind, whether virgin or previously married, has the right to marry without her guardian’s consent, although obtaining her consent is preferred. We used to ask the imam to be a woman’s wali, but that led to some collusion and so we found it better to let the woman be her own wali. Marriage must be a contract between two competent individuals. The most acceptable Sunni hadith, in my opinion, is the one of the woman who told the Prophet, “My father has given me in marriage to his nephew.” The Prophet asked her father to justify his action. The daughter then told the Prophet that she consented to the marriage; she only wanted his confirmation that her con- sent was required.

General Discussion

Imami can mean Ja’fari or Isma’ili, but in my paper it refers only to the Twelvers (or Ja’fari). The view that we have called the position of Abu Hanifah may have been the custom of Iraq that may have been attributed to him retroactively.

During the mid-tenth to the mid-eleventh century (“the Shi’a century”), the Shi’as were completely open to Sunni ideas. Only after the fourteenth century did that change. The whole idea of mukhalafah li al-’ammah must be used with caution.

Kecia Ali’s Marriage and Slavery in Early Islam (Cambridge, MA: Harvard University Press, 2010) is commendable. During that period, as in rabbinic Judaism, marriage and slavery had much in common. There is no agreement, however, as to whether a girl’s emancipation is achieved by majority or by marriage.

Anyone can represent a woman, including herself. The question is not who represents her, but “Who is her guardian?” This is the difference between the wakil and the wali.

In very conservative families we send the wali and two witnesses to ask: (1) “does she accept this man?” (2) “does she accept the advanced and deferred dowries?” and (3) “does she have conditions that she wants to be mentioned?” Sometimes we might ask if there is a prenuptial agreement.

Tabari maintained that a woman can lay down any conditions she wishes in the marriage contract, even refusing to do housework, with only one limit: She cannot refuse sex, because that is the point of the marriage. Some imams will refuse to marry a couple if they have not negotiated a contract.

This conversation is interesting, but seems out of place, out of time, and very literal. Does the woman have agency? Can women control their own bodies? Young American-born women hearing this conversation might be driven away by it. How can we say women can be judges or even rulers and still ask whose permission they need to marry? If people who care about Islam continue to return to those arguments, Islam will continue to be marginalized. The fuquha’ are approaching the text with a preconceived conclusion in mind.

We cannot just jump out of what we know into something that is foreign to our background. change will come, but gradually.

The jurists have serious pastoral concerns almost to the brink of defending women’s rights. It is so simple for a woman to marry whomever she wishes. Marriage has always been a family enterprise instead of an individualistic one. Scholars emphasize their fear of a father being high-handed with his daughter and categorically reject such behavior. Maybe there should never have been a ruling giving the guardian agency in the first place; however, in all fairness, someone like Allamah al-Hilli, a contemporary of Ibn Taymiyyah, gives so many reasons for allowing the woman absolute agency while at the same time cautioning that she be protected from the possible machinations of her intended.

Islam liberates, of course, but our history is open for everyone to study. Either we study it or we end up in apologetics, which leads nowhere. Academic freedom is important, and the study of history and culture is important even if we must study things that, from the perspective of the twenty-first century, seem lacking. Intention aside, in the end avoiding our history doesn’t work.

This study is appropriate in the context of this scholarly meeting. It would be in- appropriate for a public lecture in a mosque.

It is valuable to integrate the best of this history and integrate it into the thought of our time.

This is not the time to go back in time.

The first thing we should learn from this is that it is not an easy matter. The compilation of the hadith has still not been resolved. Second, this paper shows the relevancy of such debates to those of us in the West to formulating a methodology. The great scholars are the liberal scholars: the more you know, the more you know that you don’t know. Our approach is family-oriented, but we live in a society that is not family-oriented. Our concern is to protect the family, which is a society’s founding unit.

It is important for the fatwa to be relevant to our times. The presentation comes from the lecture notes of their students. In the fiqh books they give their one-sentence conclusions, which is not enough. The presentation doesn’t support anyone, but only exposes the reality to which we must face up. We must not water down the patriarchal history of the Abrahamic religions. We must recognize that there are patriarchal and misogynistic hadith, even if we wish to reject them.

Virginity is sexual; maturity is psychological.

When we speak of the virgin of sound mind, we speak of a woman who is un- married but who knows the ways of the world. This is why these texts are relevant to modern society, where unmarried working and educated women are common.

A young convert received three marriage proposals through women (mothers) at an extremely conservative mosque; all of the questions put to her by women through her friend. Her husband never received a single question from the prospective husbands’ menfolk, usually the fathers, who seemed to play no role at all. It seemed to be totally controlled by the women. Is this case unusual?

Like rabbinic jurisprudence, these academic analyses can be very divorced from social reality.

There have been real efforts among Shi’a ulama to come closer to Sunni thought. We should bless and work with such efforts, because above all we need unity. Legal jargon in Islam makes a distinction between a virgin and a non-virgin, one that is applied to both men and women in different ways. Virginity is a marker of immaturity, as girls in that society usually married early. Many of early female Muslims, including the Prophet’s daughters, died young because they got pregnant before their bodies were ready. It was a cultural problem.

In a manuscript of all the claims to ijma’ among the early Shi’a, there is the case of a shaykh who contradicted his own claim to ijma’ seventy times. This raises the question of what ijma’ means in such a case. As some of the early scholars rejected solitary traditions, some of the claims of ijma’ may have referred not to literal consensus, but rather to a tacit consensus that such an opinion exists and has some support or evidence. Whether we agree with this or not, it is there.

For the Shi’a, the Imam is the safeguard of the society’s integrity. In his absence scholars can err. And if each scholar can err individually, it is possible that all can err collectively, which means that you can have no ijma’. If the entire Shi’a community were to agree on an error, that would be a cause for the Imam to return.

Was anyone ever attracted to Islam by fiqh or ‘aqidah; people are attracted by the heart in the community or because of Sufism. As far as women being the agents of the marriage contract, Moroccan women do everything and the men are informed at the end. Perhaps the scholars have distanced themselves from the ummah.

Harvard published a wonderful book devoted to the Islamic marriage contract: The Islamic Marriage Contract: Case Studies in Islamic Family Law (2008). According to Shi’a law, couples can amend the contract by mutual consent regardless of the terms included by the wali.

  • 1. For the purposes of this paper, jurist, Imami, and Shi’i refer to Twelver Shi’i unless otherwise stated.
  • 2. Within the context of this analysis, I define the non-wali subject as any individual who does not have the authority to contract a marriage without his/her guardian’s consent.
  • 3. In this paper, virgin implies an adolescent woman who has never had sexual intercourse but is of sound mind, able to discern right from wrong (al-rashidah, al-’aqilah or ghayri al-safihah). For those who have lost their virginity through fornication, the vast majority of contemporary jurists have ruled that although physically not virgins, they are classified as such insofar as they would not be afforded the agency offered to a divorced or widowed woman (thayyib). This includes the validity of a marriage contract executed without her wali’s permission.
  • 4. In his Kitab al-Khilaf, Shaykh al-Tusi (d. 460 Ah) states ikhtalafu ashabana (our companions/Shi’a disagree) on this matter, that is to say from as early as early fifth century Twelver Shi’i scholars disagreed as to whether the wali’s idhn (permission) was required. He goes on to mention the disagreement between the Shafi’is and the hanafis on the same matter. See Abi Ja’far Muhammad ibn al- Hasan al-Tusi, Kitab al-Khilaf (Qum: Sharka Dar al-Ma’arif al-Islamiyyah, 1958), 2:358-59.
  • 5. I use “he” because the vast majority (if not all) mujtahids continue to be men. There may be female mujtahids, but I have not come across any published work to indicate otherwise. This is perhaps further indicative that a great impediment to female authority within this tradition is the production of authoritative written texts, especially as regards positive and substantive Islamic law, logic, Qur’anic exegesis, and hadith studies. In Imami law, a mujtahid derives rulings from various sources, namely, the Qur’an, Sunnah, and reason. This process is known as itjihad (the exertion of effort).
  • 6. This is commonly known as istinbat (deduction of rulings from the appropriate sources).
  • 7. These are normally substantial technical works often carried out once a jurist begins teaching advanced studies (bahth al-kharij) covering the semantics and hermeneutics of demonstrative jurisprudence and principles of jurisprudence within which Qur’anic exegesis and hadith studies are included. Shara’i’ al-Islam is an early-mid seventh century work that outlines the fatwas of Muhaqqiq al-Hilli who, along with his nephew al-Allama al-Hilli, were instrumental in developing a notion of ijtihad acceptable to Imami jurists that did not entail juristic opinion; rather, it provided a process of extracting the rulings from the Qur’an, Sunnah, and al-’aql (reason). They also laid the groundwork for the future epistemology of hadith analysis and shed further light on the acceptable use of solitary reports (akhbar al-ahad) in deriving Islamic law. numerous scholars have commented upon Muhaqqiq al-Hilli’s Shara’i’ al-Islam, and prior to the ‘Urwah it was a rite of passage for a mujtahid to either append his own notes to it or to compile a substantial commentary, such as Muhammad b. Hasan al-Najafi’s forty-three volume Jawahar al-Kalam fi Sharh Shara’i’ al-Islam (Dar Ihya’ al-Turath al-’Arabi: 1984).

    On the other hand, the prominent early twentieth-century Imami mujtahid Sayyid Kazim al-Yazdi authored Al-’Urwat al-Wuthqa; his ahkam work became a popular subject of commentaries and hashiyat by his students and later scholars. For a detailed overview of development of Imami ijtihad and hermeneutics, see Ahmed Kazemi Mousavi, Religious Authority in Shi’ite Islam (Kuala lampur: ISTAC, 1996), 75-105. Also see Norman Calder, “doubt and Prerogative: The Emergence of an Imami Theory of Ijtihad,” Studia Islamica 70 (1989), 55-78.

  • 8. Two examples come to mind: Ayatullah Khamene’i, following the groundbreaking ruling of his predecessor (Ayatullah Khomeini), allows the playing of chess (al-shatranj) providing no one gambles; on the other hand Sistani and the vast majority of Shi’i jurists consider chess to be absolutely haram (impermissible) and sinful. This is a significant cleavage between these two jurists, who have a significant number of muqallidun (followers) in the Middle East (Iran, Iraq, Lebanon, and Bahrain) and India, Pakistan, Europe, and north America.

    Situations continue to arise where Khamene’i followers want to play chess and Sistani followers vehemently object. Both groups attend the same mosque. The imam of the center is usually called upon for an answer, only to insist that both groups show respect for one another’s sources of emulation and learn to co-exist! This is a prime example of intra-Shi’i conflict. For rulings regarding chess, see al-Sayyid Abul Qasim al-Khu’i, Sirat al-Najat with the notes of Mirza Jawad al-Tabrizi (Qum: Maktab nashr al-Muntakhab, 1995), 1:376, http://www.sistani. org/local.php?modules=nav&nid=5&cid=427&hl=chess, last assessed February 13, 2011 and http://www.leader.ir/tree/index.php?catid=23, last accessed February 13, 2011).

  • 9. Throughout this paper, father includes the paternal biological father as well as the paternal biological grandfather, paternal great-grandfather, and so on.
  • 10. See: Jawad Maghniyya, Fiqh al-Imam Ja’far al-Sadiq (Qum: Mu’assasah Sibtayn al-’Alamiyyah, 2002), 5:233-34. He states that the only way to interpret or discover ikhtilaf among the traditions is to invoke the principle of “no undue harm or injury” or a similar ethical basis for rejecting the traditions. The problem in calling upon such principles is that they are very general and can seldom, if ever, outstrip a series of confirmed and authenticated traditions (according to traditional Imami standards) of their legal and probative value. In such cases, these jurists may invoke certain ethical norms (e.g., family harmony or the need to ensure a healthy and religiously prosperous future for one’s children), but such ethical precepts have little or no bearing on the eventual fatwa.
  • 11. One method of resolving an apparent contradiction between two hadiths, both of which are believed to have been said by the Imam, is to reject the tradition that accords with or is closest to the Sunni position on the grounds that it must have been said in a state of dissimulation (al-taqiyyah). For a concise and complete discussion, see Sayyid Muhammad Taqi al-Hakim, Usul al-’Ammah li al-Fiqh al-Muqaran, 3d ed. (Qum: Majma’ al-’Alimi li al-Ahlu l-Bayt, 1997), 355-56.
  • 12. The principle disagreement between some Sunni jurists centers on the inferred ‘illa (ratio legis) of agency being virginity or physical and mental maturity (al-bulugh wa al-rushd). See note 78 for more details.
  • 13. Suitability (kafa’ah) indicates that the potential husband must be of a comparable socio-economic status and/or tadayyun (observes Islamic law and is not a drunkard, for example). The prevention of marriage (al-’adl) means the guardian at- tempts to prohibit his subject (mawla) from accepting a marriage proposal.
  • 14. Jurists describe these three positions as istiqlal al-ab, istiqlal al-bint, and tashrik or ishtirak. Afourth position, tafsil, essentially distinguishes between permanent and temporary marriage: In some cases she would have agency to perform temporary marriage but not permanent marriage, and vice versa. I will not be dis cussing this because the vast majority of contemporary jurists do not differentiate between the two when issuing fatwas.

    For an extensive discussion concerning all the stated positions, see Muhammad Hasan al- Najafi (d. 1266 Ah), Jawahir al-Kalam fi Sharh Shara’i’ al-Islam (Beirut: Dar al-Ihya’Turath al-Arabi, 1981- 84), 29: 174-83. For a brief overview, see Ja’far ibn al Hasan Muhaqqiq al-Hilli, Mukhtsar al-Nafi’ (Qum: Mu’assasah Matbu’at dini, 1997), 183.

  • 15. Conflicting traditions or contradictory reports are known as al-akhbar al-mut’aridah. Textual evidences are described as nusus.
  • 16. These four compendiums are Kitab al-Kafi, Man la Yahduruhu al-Faqih, Tahdhib al-Ahkam, and Al-Istibsar fi ma Ikhtalafa al-Akhbar. There exists minimal scholarly analysis of these four texts, as the field of Imami hadith studies remains in its infancy. For a general overview regarding these texts, see Jonathan Brown, Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oxford: Oneworld, 2009), 123-50.
  • 17. Abu Ja’far Muhammad ibn al-Hasan al-Tusi, Al-Istibsar fi ma Ikhtalafa al- Akhbar (Tehran: Dar al-Kutub al-Islamiyyah, 1970), 3:235; 1. Also see Ibn Babawayh al-Qummi (a.k.a. Shaykh al-Saduq), Man la Yahduruhu al-Faqih (Beirut: Mu’asasah al-’Alimi al-Matbu’at, 1986), 3:259, hadith no. 439; and Muhammad b. Ya’qub al-Kulyani, Al-Furu’ min al-Kafi (Beirut: Dar al-Ta’aruf, 1981), 5:393 hadith no. 1. Also, Shaykh al-Mufid cites this tradition verbatim in the form of a legal ruling without explicitly indicating that it is a hadith report. See Shaykh al-Mufid, Al-Muqni’a (Beirut: Dar al-Mufid, 1993), 510-11.
  • 18. Muhammad b. al-Hasan al-Hurr al-’Amili, Wasa’il al-Shi’ah (Qum: Dhu al-Qurba’ 2007), 7:359, hadith no. 3. Also see Kulyani, Al-Furu’, 393, hadith no. 2, and Tusi, Al-Istibsar, 235, hadith no. 5.
  • 19. Robert Gleave, “Between hadith and Fiqh: The canonical Imami collections of Akhbar,” Islamic Law and Society 8 (2001): 358-364. Gleave draws attention to the arrangement, listing, and heading under which the ahadith are placed. Although this may vary from scholar to scholar, it is nevertheless important to take note of this, especially as regards Kulyani and Saduq.
  • 20. Abu al-Qasim al-Khu’i, Mabani al-’Urwa al-Wuthqa’ Kitab al-Nikkah, vol. 2, and Sayyid Muhammad Sadiq al-Ruhani, Fiqh al-Sadiq, vol. 21 (Qum: Dar al- Kitab, 1992), http://www.imamrohani.com/arabic/kotob/fokh/21/02.hTM# fehrest18, last accessed April 2, 20011). The hardcopy of this work was not available to me during the writing of this paper; however, Imam al-Ruhani’s office has uploaded the complete version of the cited edition online, including the foot- notes from the original text.
  • 21. See Liyakat Takim, “offering complete or Shortened Prayers? The Traveler’s Salat at the holy Places,” Muslim World 96 (2006): 409-413. Takim provides an extensive discussion concerning the connection between jurisprudence and ‘ilm al-rijal (science of the narrators of hadith). All three of the stated transmitters were among the most prominent students and companions of the Fifth, sixth, and Seventh Imams. All of these reporters, aside from Ibn Abi Ya’fur, are described as belonging to the ashab al-’ijma’ (those companions known as jurists [fuqaha’ min al-ashab] whose repute is beyond reproach).

    See Muhammad b. Umar al-Kashshi, Rijal al-Kashshi (Karbala: Mu’assasat al-’Alimi, n.d.), 206 as cited in Ja’far al-Subhani, Kulliyat fi ‘Ilm al-Rijal (Qum: Imam al-Sadiq Foundation, 2006), 173-80. The idealization of these transmitters is in no way monolithic in the Imami tradition, for such later scholars as Mamaqani, al-Khu’i, and others engaged in a hermeneutics of idealization and rehabilitation of the rijal. For a thorough discussion, see Liyakat Takim, Heirs of The Prophet: Charisma and Religious Authority in Shi’ite Islam (Albany: State of New York University Press 2006), 158-63.

  • 22. Al-jariyah has several meanings, one of them being a young woman or youthful woman, as well as a slave or free woman. The lexicons indicate the general usage of “unmarried” or “young woman,” as opposed to ‘ajuz (older woman), and a virgin or non-virgin. Al-Khu’i and others tend to interpret this tradition and similar ones as applying to non-virgins because there are numerous and straightforward traditions that emphasize the thayyib’s (non-virgin) agency. See E. W. Lane, Arabic-English Lexicon (Cambridge: Islamic Texts Society, 2003), 1:416. Also see Fakhr al-Din b. Muhammad al-Turayhi, Majma’ al-Bahrayn (Najaf: Dar al-Thaqafa, 1961), 1:82.
  • 23. al-Khu’i, Mabani, 266. Also see Kulyani, Al-Furu’, 392, hadith no. 8.
  • 24. Hurr al-’Amili, 7:364, hadith no. 2 and Shaykh al-Tusi, Tahdhib al-Ahkam (Tehran: Dar al-Kutub al-Islamiyyah, 1988), 7:379, hadith no. 10. Al-Tusi lists numerous traditions stressing the need for seeking the virgin’s permission and satisfaction before marrying her to future husband.
  • 25. Kulayni, Furu’ al-Kafi, 7:391, hadith no. 1, as well as Saduq, Man la Yahduruhu, 259 hadith no. 4397. It reads as follows: Al-mar’ah alati qad malakat nafsaha wa ghayri al-safihah wa la mawla ‘alayha, tazwij bi-ghayri wali ja’iz.
  • 26. Hurr al-’Amili, 7:365, hadith no. 6. Shaykh Tusi, Al-Istibsar fi ma Ikhtalafa al-Akhbar (Tehran: Dar al-Kutub al-Islamiyyah, 1969), 3:234, hadith no. 6. The tradition reads as follows: Idha kanat al-ma’rah malikah ‘amruha tabi’u wa tashtari wa tu’taqu wa tushadu wa tu’ti min maliha ma sha’at fa-inna ‘amraha ja’iz tuzzauwiju ‘in sha’t bighayri idhni waliuha, wa ‘in lam takun kadhalika fa- la yajuzu tazwijuha ‘illa bi-’amri waliuha. For traditions of a similar purport, see ibid, and Kulayni, Furu’ al-Kafi 7:391, hadith no. 1, as well as Saduq, Man la Yahduruhu, 259 hadith no. 4397.
  • 27. Shaykh al-Tusi, Al-Istibsar, 3, 236, hadith no. 6 and Hurr al-’Amili, 7:365, hadith no. 4.
  • 28. Al-Khu’i, Mabani, 257.
  • 29. As I mentioned earlier, al-Khu’i is by no means the first to construct this position based on reconciliation between these opposing traditions. But in his capacity as a mujtahid, he must go through the motions of once again surveying all of the traditions in order to delineate how he arrives at the position of joint agency also known as tashrik baynahuma.
  • 30. If her potential spouse is deemed to be suitable and equitable (kafu’), then his idhn is not an absolute must. I will return to the question of suitability in the paper’s final section.
  • 31. Ibid., 258. For al-Khu’i, the Sunnah constitutes the authenticated traditions of the Fourteen Infallibles. Also I should note that for al-Khu’i, the Qur’an only supports his position in a very general sense insofar as there is no objection to the tashrik position. As a result, he places little or no emphasis on Qur’anic support for his ruling.
  • 32. I will return to the family unit and social realities when discussing the function of kafa’ah and al-’adl. In the work of al- al-Khu’i, father implies both biological father and paternal grandfather (al-ab wa al-jadd). That being said, the ahadith appear ambivalent on the matter and the majority of jurists tend to the give the father priority in the case of a conflict. For example, after much debate the famous jurisprudent of Iraq, Kashif al-Ghita’ left the door open to istiqlal al-bint, provided that she does not bring shame (hatak) upon her guardian. See Ja’far al-Subhani, Nizam al-Nikkah (Qum: Imam al-Sadiq Foundation, 1995), 192.
  • 33. The joint agency position is famous among scholars from the tenth Islamic century onward. In one of the earliest commentaries on Muhaqqiq al-Hilli’s Shara’i’ al-Islam, under the section on marriage and agency, the author concluded the following: “al-jama’ bayna idhniha wa idhn al-ab tariq al-ihtiyat…”, the joining of her consent and that of the father is the way of precaution, and God knows best with regards to the realities of rulings.”

    See Muhammad b. Ali al-’Amili, Nihaya al-Maram fi Sharh Mukhtasar Shara’i al-Islam, vol. 1. (Qum: Jami’at al-Mudarrisin, n.d.); Sayyid Muhsin al-Tabatba’i al-Hakim, Mutamasak al-‘Urwat al-Wuthqa (Qum: Manshurat Maktabat Ayatullah al-’Uzma al-Mar’ashi al-Najafi, 1983), 14:445-48; and al-Najafi, Jawahar al-Kalam, 29:183-84, and Sayyid Ali al-Husayni al-Sistani, Islamic Laws (Stanmore: The World Federation of KS.I. Muslim communities, 1994), 439. Sayyid Sistani is considered to be the most popular source of emulation in Iraq if not the entire Shi’i world, in that he commands the largest number of muqallidin (emulators).

  • 34. Al-Khu’i, Manani, 270. Also see Sayyid Muhsin Hakim, Minhaj al-Salihin, ed. and comp. Sayyid Muhammad Baqir al-Sadr (Beirut: Dar al-Ta’aruf, 1980), 276.
  • 35. A discussion surrounding the development and use of ihtiyat wujuban in Imami jurisprudence is beyond the scope of this paper. It is restrictive but not absolute, because it allows a muqallid to refer to another jurist, provided that the jurist has a clear fatwa. Aside from Sayyid Muhammad Husayn Fadlallah and Sayyid al-Ruhani, the vast majority of jurists have made the same ruling as al-Khu’i. An example of this use of precaution can be seen in al-Khu’i’s insistence that the hijab include face veiling. He considers this an obligatory precaution, thus allowing his followers to refer to “the next most learned jurist” with an alternative opinion.
  • 36. Shaykh Tusi, Kitab al-’Amali (Tehran: Dar al-Kutub al-Islamiyyah, 2001), 71- 72, majlis 2, hadith no.13. There is also an interesting report, albeit without a chain of narrators, in which Fatimah objects to marrying Ali, after which the Prophet explains the latter’s spiritual merits in this world and the next, all of which were brought to his attention during his heavenly ascent, therefore leaving no other person kafu’ (suitable) for her. She then agreed to the proposal. See Ali b. Ibrahim al-Qummi, Tafsir al-Qummi (Qum: Dar al-Kitab, 1984), 2:336-37.
  • 37. Both Muhammad b. Hasan al-Najafi and Sayyid Muhsin Hakim, who relate this incident, cite this same report in support of shared agency and thereby have infused it with legal value. That being said, neither of them mentioned Fatimah’s kiraha to previous proposals. See Muhsin Hakim, 14:446, and Muhammad b. Hasan al-Najafi, 29:183.
  • 38. “The Prophet has greater precedence over the believers than they have over themselves…” See Q. 33:6. For a mainstream Imami exegesis of this verse, see Abu al-Fadl al-Hasan al-Tabrasi, Majma’ al-Bayan fi Tafsir al-Qur’an (Tehran: nasr Khusraw Publication, 1993), 8:530.
  • 39. Sayyid Muhammad Sadiq al-Ruhani was among the late Sayyid Abul Qasim al-Khu’i’s most prominent students. This is quite a remarkable claim within contemporary Imami clerical circles. For a biography of al-Ruhani, see http://www. imamrohani.com/arabic/sira/01.htm, May 1, 2010.
  • 40. Almost every work of demonstrative jurisprudence has cited this as central detracting factor in this report’s Hujjiyah. See al-Khu’i, Mabani, 2:259. For other discussions, see Muhammad Ali al-Araki, Kitab al-Nikah (Qum: Nur Nagar, 1998), 46-47. For a concise overview, see Baqir Irwani, Al-Fiqh al-Istidlal (Beirut: Dar al-Amirah, 2008), 2:299-203.
  • 41. Malikah can be rendered as “an empowered woman” or “a woman who governs herself.”
  • 42. For a discussion concerning the legal usage of mutlaq, see Mahmud Abd al-Rahman, Mu’jam al-Mustalahat wa al-Alfaz al-Fiqhiyah (Cairo: Dar al-Fadliyyah, n.d.), 3:308.
  • 43. The implications of this question are enormous for those who assent to this system of law because if she marries despite her guardian’s objections and assuming that the marriage was consummated, it may constitute fornication according to some interpretations.
  • 44. Sayyid al-Ruhani describes this tradition as tafsir malikiyyah al-’amr (a commentary of what it means to have control over one’s life affairs). That being said, its exegetical function is debated and has been discussed at length by both past and present scholars. See Yusuf al-Bahrani, Hada’iq al-Nadirah fi Ahkam al-‘Itra al-Tahirah (Qum: Jami’at al-Mudarrisin, 1984), 23:222-23.
  • 45. I have not come across a critique of this chain of transmission prior to al-Khu’i.
  • 46. Al-Khu’i, Mabani, 260. Al-Khu’i is concerned with the transmitters who lie between Tusi and Ali b. Isma’il. This chain, which is often not disclosed, is what is meant by bi isnadihi when it is affixed at the chain’s beginning.
  • 47. The rawi (reporter) in question has been widely described as one of the first muttakalims (theologians) among the Imamis. Al-Najashi describes him as being min ashabina kallama min al-Hudhayl wa al-Nizam. Among other texts, he apparently also composed a treatise on marriage. See Ahmad b. Ali al-Najashi, Rijal al-Najashi (Beirut: Dar al-Adwa’, 1988), 2:72. Al-Khu’i corroborates much of what is found in Najashi, but does not mention the lack of his authentication in his rijal compendium. See Sayyid Abul Qasim al-Khu’i, Mu’jam al-Rijal al- Hadith (Qum: Markaz al-Athar al-Shi’ah, 1990), 11:275-76.
  • 48. Liyakat Takim provides an in-depth analysis of al-Khu’is methods of general and specific authentication of hadith transmitters. General authentication (al-tawthiqat al-’ammah) entails authenticating an entire chain based on the established thiqah of the text’s compiler. For example, al-Khu’i believed that since Ibn Qulawah, who compiled Kamil al-Ziyarat, is trustworthy, this should imply that all of the transmission chains of which he is the final transmitter must be deemed authentic.

    An authentication of this type essentially deems the entire text to be sahih. On the other hand, al-tawthiqat al-khassah implies that only Ibn Qawlawayh’s principal sources of information (mashaykh; those of his teachers who transmitted directly to him) would be deemed authentic and trustworthy, thus leaving the remainder of the isnad open to critique. See Liyakat Takim, “The origins and Evaluation of hadith Transmitters in Shi’i Biographical literature,” American Journal of Islamic Social Sciences 24, no. 4 (2007): 35-37.

  • 49. Al-Ruhani points out that the last phrase, bi ghayri idhn abiha, as recorded in the manuscripts and printed editions of al-Tusi’s Tahdhib and Istibsar has also been rendered as bi-gharyi idhn waliha. This alternative can be found in al-Khu’is Mabani as well in Shahid al-Thani’s Masalik al-Ifham. This is most likely due to scribal error.
    See al-Ruhani, http:// www.imamrohani.com/arabic/kotob/fokh/ 21/02.hTM#fehrest18; al-Khu’i, Mabani, 260; and Zayn al-Din b. Ahmad b. Ali al-’Amili, Masalik al-Ifham illa Tanqih Shara’i’ al-Islam (Qum: Mu’assasat al-Ma’arif al-Islamiyyah, 1992), 7:125.

    Also, the verb radiya (r-d-a) implies an opposition to al-sakhat (anger) and a high quality of consent or being well pleased. See Lane, Arabic-English Lexicon, 1:1099.

  • 50. See Araki, Kitab al-Nikah, 46.
  • 51. Ibn Qulawayh was said to have been one of Shaykh al-Mufid’s teachers, and Ali b. Ibrahim al-Qummi was one of al-Kulyani’s principal hadith instructors. See Muhammad b. Sulayman al-Tanakabuni, Qisas al-’Ulama’ (Beirut: Dar al-Mahhajah al-Bayda’, 1992), 454-55. The introduction to Tafsir al-Qummi mentions some important biographical information. See al-Qummi, Tafsir al-Qummi, 5-6.
  • 52. See Takim, Tafsir al-Qummi, 43. Apparently it was brought to al-Khu’i’s attention that by carrying out mass authentication he was, in turn, authenticating otherwise unknown and untrustworthy transmitters. Thus he changed his position from tawthiqat al-’ammah to tawthiqat al-khassah. For al-Khu’is position on the authentication of Tafsir al-Qummi, see Muslim al-Dawari, Usul ‘Ilm al-Rijal (Qum: Mu’assasat al-Muhibin, 2005), 1:273-75.
  • 53. The biographical texts allege that Abbas b. Ma’ruf was a trustworthy (thiqah) companion of the Eighth Imam, Ali b. Musa al-Rida’. See Najashi, Rijal, 5:120.
  • 54. I use the term authentic in a relative fashion, as authenticity is interpretive and used in the context of Imami-usuli hadith studies.
  • 55. One may posit several hypotheses for this increase in complexity and intense critique: (1) the exigencies present due to the modern condition and society, which increasingly demand newer and more practical solutions to such socio-domestic matters as marriage and (2) the field’s advancement is partly evolutionary insofar as Imami scholars, in addition to growing in number, are attempting to build upon the past’s vast legal commentaries and not settle for its mere reproduction whether it be in the field of hadith studies, linguistics, history, or law. They may not always differ with past rulings; however, the justifications they provide for their rulings are often far more substantial and precise. This is especially true in the case of marital law, which continues to serve as a nexus point of competing social, legal, and cultural concerns for Muslim communities.
  • 56. See al-Hasan b. Mutahar al-Hilli, Mukhtalaf al-Shi’ah fi Ahkam al-Shar’iyah (Qum: Jami’at al-Mudarrisin, 1999), 7:114-15. What is meant here is that medieval jurists such as al-Hilli did not engage in the same discourse concerning juristic preference or harmonization of traditions in the context of this mas’alah.
  • 57. Some jurists also describe this as al-takhir, which entails the act of choosing one position over all others when confronted with opposing traditions.
  • 58. The only prominent contemporary work of demonstrative jurisprudence, aside from that of al-Ruhani that supports the virgin’s agency is that of Jawad Maghniyya. See Jawad Maghniyya, Fiqh Imam al-Sadiq, 5:231-32.
  • 59. See Taqi al-Hakim, Usul al-’Ammah, 354-56 and Muhammad Ishaq al-Fayad, Muhadarat fi Usul al-Fiqh: Taqriran li Abhath Ayatullah al-Khu’i (Qum: Mu’assasah Ihya Athar al-Imam al-Khu’i, 2002), 3:221-23. Sunnah may imply any belief or position supported or practiced by an Infallible or accepted practice among Shi’i scholars, although the latter is not agreed upon. Imami jurists derive these three elements of juristic preference from following tradition: “When you are confronted with two conflicting traditions, compare them with the Qur’an. Take that which agrees with the book of God, and leave that which opposes it. If you do not find it (the answer) in the book of God, then compare them (the two traditions) to the reports of the ‘ammah (non-Shi’as). Leave that which agrees with their reports and statements, and take that which opposes their reports.” See al-Hurr al-’Amili, Wasa’il al-Shi’ah. 10 vols. (Qum: dhu al-Qurba’, 2007), 27:118. Also see Saduq, Man la Yahduruhu, 2:171.
  • 60. I will address the contention over the evidentiary value of the Qur’an within the confines of this subject below.
  • 61. This definition has been supplied by Liyakat Takim. See Takim, “Shortened Prayers,” 406.
  • 62. The entire process of al-ta’adal wa al-tarjih (comparison between traditions and juristic preference) is designed to produce a proof or al-hujjah (tahsil al-hujjah) for a given legal ruling in the event that the traditional evidences oppose one another (‘inda al-ta’arad bayna al-’adillah). See Muhammad Rida Muzaffar, Usul al-Fiqh (Beirut: Mu’assasat al-’Alami al-Matbu’at, 1970), 181.
  • 63. Maghniyya also uses shahra as a means of tarjih. See Maghniyya, Fiqh al-Imam Ja’far al-Sadiq, 5:232. For al-Murtada, the virgin’s agency hinges upon her being able to control her own affairs (tammalaka amraha) and of sound mind (‘aqlalat) and complete (kamalat). I would assume that this implies she is both physically and mentally mature. See Ali b. al-Husayn al-Murtada, Al-Intisar (Najaf: Maktabat al-Haydariyyah, 1971), 120.
  • 64. The qudama’ may include Shaykh al-Saduq, Tusi, and al-Murtada among others. the muta’khirun may include Shahid al-Awwal, Thani, al-Hurr al-’Amili, Yusuf al-Bahrani, and Muhammad b. Hasan al-Najafi (d. 1266 Ah). For a summary of the various legal opinions, see al-Hasan b. Mutahar al-Hilli, Mukhtalaf al-Shi’ah fi Ahkam al-Shar’iyah (Qum: Jami’at al-Mudarrisin, 1999) and Ja’far Subhani, Nizam al-Nikah, 173-75. For a summary of both early and later opinions, in addition to an extensive analysis of the various positions and historical trajectory of this mas’alah, see Shaykh al-Murtada’ al-Ansari, Kitab al-Nikah, (Qum: al-Mu’tamar al-’Alami li Takhlid dhikra’ Shaykh al-’Azam, 1995), 108-28.
  • 65. For instance, Jawad Maghniyya goes further to claim the following: Most of the Imamis (hold) that the physically mature and mentally sound woman, by means of her physical maturity (bulugh) and mental soundness (rushd) possess agency (tamalak) in all aspects of her behavior (and endeavors) with respect to (com- mitment to and fulfillment) of contracts and otherwise. This (agency) extends to marriage, regardless of whether she is a virgin or non-virgin. Thus, she can contract (a marriage) for herself (ta’qadu li nafsiha) or for someone else (lighariha) directly or via proxy, and may respond (ijab) and accept (qubul) the marriage proposal (without necessary recourse to a guardian). This is equally allowable if she has a father, a grandfather, other male blood relatives, or none at all. Furthermore, it does not matter if the father is pleased or displeased (with her marital arrangement). And it is all the same whether she is of elevated (rafi’ah) or lower (wadi’ah) social status, or if she marries a man of high status or low status. See al-Mughniyya, Al-Fiqh ‘ala Madhahib al-Khamsah, 2:322.
  • 66. As note 18: Muhammad b. al-Hasan al-Hurr al-’Amili, Wasa’il al-Shi’ah (Qum: Dhu al-Qurba’ 2007), 7:359, hadith no. 3. Also see Kulyani, Al-Furu’, 393, hadith no. 2, and Tusi, Al-Istibsar, 235, hadith no. 5.
  • 67. Ibn Idris (d. 598 Ah) states the following: “Wa raja’a ‘amma dhakarahu fi nihayatihi wa sa’ir kutubihi li’anna kitab al-tibyan sannafahu ba’da kutubihi jami’iha wa istihkam ‘ilmihi.” he then extracts a gloss from al-Tusi’s commentary on Q. 2:237, stating that there is no wilayah except that given to the father or grandfather upon the non-pubescent virgin (‘ala al-bikr ghayri al-baligh). See Ibn Idris al-Hilli, Al-Sara’ir al-Hawi li Tahrir al-Fatawi (Qum: Jami’at al- Mudarisin, 1990), 2:563. However, this selection must be scrutinized further because upon referring to the Tibyan, al-Tusi follows this gloss by stating the following: “wa fihi khilaf bayna al-fuqaha’dhakaranahu fi al-khilaf wa qawayna ma akhbararnahu hunaka” which translates as “and in it (the issue of guardian- ship over the marriage contract) there is disagreement between the jurists.

    We have discussed it in Al-Khilaf (al-Tusi’s work on comparative jurisprudence) and supported what we have reported there.” This statement could be interpreted as meaning that the full explanation of his position vis-à-vis the Sunnis can be found in the Khilaf. Upon referring to this book, al-Tusi clearly states that the pubescent virgin of sound mind does not have the authority to contract a marriage without the consent of her father(s). See al-Tusi, Al-Tibyan fi Tafsir al- Qur’an (Beirut: Dar al-Ihya’ Turath al-’Arabi, 1989), 2:273; al-Tusi, Al-Khilaf, 358.

    Despite all of these apparent incongruences, Ibn Idris cites another of al-Tusi’s opinions from al-Mabsut, in which after noting the intra-Imami ikhtilaf he states: “idha tazawwaja man dhakarnahu gibhayri walin kana al-’aqd sahihan” which translates “as if whom we mentioned (the pubescent virgin) was to marry without the wali (without his permission), the contract would be valid.” See al-Tusi, Al-Mabsut fi Fiqh al-Imamiyah (Qum: Jami’at al-Mudarrisin, 2006), 3:387.

    Now, the question as to which statement best reflects his final position is subjective, at least for the reason that if the Tibyan was really his final work (which most biographies confirm), then the shaykh himself is giving preference to what he has mentioned in the Khilaf. Therefore what is found there can be considered his most authoritative opinion on the matter. However, this may only be limited to comparative jurisprudence since the Khilaf is a comparative work and his more profound work is without doubt, the Mabsut. nevertheless, any conclusions drawn from this or claims to shuhra are speculation at best.

  • 68. Al-Mufid, Al-Muqni’a, 510-11, and al-Mufid, Ahkam al-Nisa’ (Qum: collection of Shaykh Mufid’s Works, 1992), 36.
  • 69. The reason for such uncertainty lies in the fact that we are not sure if the Ahkam al-Nisa’ was written before or after the Muqni’a, especially since al-Najashi, while mentioning both of these works, does not mention when they were completed. Furthermore in al-Tusi’s canonical hadith collection, namely, Tahdhib al-Ahkam fi Sharh al-Muqni’a, he does not mention this alternate position of Mufid, but rather supports the istiqlal al-ab position. Further yet, Yusuf al-Bahrani and Muhammad Mahdi Niraqi (d. 1245 Ah) have both taken issue with and attempted to grapple with the apparent contradictory or variant opinions of early jurists such as al-Tusi, al-Mufid, and al-Murtada’ in addition to questionable claims to ijma’. Al-Bahrani cites a partial treatise in his possession, written by Zayn al-Din al-’Amili (Shahid al-Thani), in which al-’Amili cites seventy occasions in which al-Tusi states one legal position only to contradict himself (mukhalafat al-shaykh li nafsihi).

    See al-Bahrani, Hada’iq al-Nadirah, 4:98. Sayyid Muhammad Husayni al-Husayni al-Jalali kindly gave me a copy of the original manuscript of this unpublished treatise attributed to Shahid al-Thani, in which he lists in detail the numerous occasions in which al-Tusi seems to contradict himself from the chapters of marriage and divorce to foodstuffs. In it, Shahid al-Thani provides no explanation for these except to state the shaykh (al-Tusi) has made claims to ijma’ only to oppose these very same claims elsewhere, and therefore the jurist cannot establish two opposite claims to consensus and, “in doing so faqad waqa’a fi al-khata’ (he falls into error).”

    However, he does not cite guardianship and the marriage contract as instances of conflict, perhaps because al-Tusi never claims consensus on the matter. See Zayn al-Din al-‘Amili, Risalah ‘ala Masa’il Da’a’fiha al-Shaykh al-Ijma’ wa Khalafa Ida’ al-Ijma’ fihi collection of Sayyid Muhammad Husayni al-Husayni al-Jalali, chicago, MS# unknown. On the other hand, Niraqi cites Shahid al-Awwal as stating that these apparent conflicting ijma’at (pl. ijma’) are in fact not contradictions at all, but merely attestations to the riwayat of the hukm, meaning that the ruling has been reported and there exists evidence for it within the corpus of akhbar and upon this there is consensus. See Muhammad Mahdi niraqi, ‘Awa’id al-Ayyam (Qum: Maktabat Basirati, 1980), 693-95.

  • 70. “Wa huwa thubut al-walaya lahuma mustaqillan mutlaqan bal huwa al-mansub ila al-mashur bayna al-qudama’,” which translates as “ and it (this legal position) consists of the confirmation of guardianship to both of them (father and paternal grandfather(s).” See al-Ruhani, http://www.imamrohani.com/arabic/kotob/fokh/21/ 02.hTM#fehrest18
  • 71. Al-Khu’i, Muhadarat, 223. “Ama al-shuhra, lam tudhakir fiha ‘ada al-marfu’ah wa al-maqbulah.”
  • 72. Muhammad Rida Muzaffar describes this as al-shuhra fi al-riwayah, when the “large” number of reporters is not sufficient to be described as constituting al-tawatur. See Muzaffar, Usul al-Fiqh, 2:143.
  • 73. Al-Khu’i’s representative told me that the mujtahids do not do taqqadus of past scholars, meaning that they do not sanctify their legal judgment. This disposition can be described as applying to the vast majority of contemporary Imami mujtahids. One example can be found in al-Khu’i’s Mabani al-’Urwat al-Wuthqa, in which he critiques Sayyid al-Murtada’s claim to consensus that if a couple commits adultery they are forbidden to each other permanently. Credit for this key reference goes to Sayyid Muhammad Rizvi, who lent me his copy of al-al-Khu’i’s lecture notes. See al- al-Khu’i, Mabani, 1:280-81.
  • 74. Al-Ruhani, Zubdat al-Usul (Qum: Amin Publishers, 2004), 4:186-87; Ibid, 6.
  • 75. These are strong words, insofar as al-Muzaffar is accusing those who vest al-shuhra al-fatwaiiyyah with hujiyah to essentially be guilty of performing a form of unacceptable taqlid and thus not living up to their commitments as bona fide mujtahids. See al-Muzaffar, Usul al-Fiqh, 2:144.
  • 76. I have used Wolfart Heinrichs’ analysis of qawa’id fiqhiyah. After stating this concept’s contested definition, he cites Taj al-Din al-Subki (d. 771 Ah) as describing the qawa’id in the following way: “The qa’idah is the generally valid rule with which many particular cases [juziyat] agree whose legal determinations can be understood from it [the qa’idah].” Therefore jurisprudential maxims can be understood as overarching theoretical concepts that may potentially make sense of individual rulings and cases. See Wolfart P. Heinrichs, “Qawa’id as a genre of legal literature,” in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill Publications, 2002), 401-02.

    The most common example cited is that if anything causes undue harm, then it can be rendered as non-compulsory or even impermissible, or that everything is considered pure unless it is proven that it is impure. This is one of the juristic principles behind taharah (purity). See Baqir Irwani, Al-Qawa’id al-Fiqhiyah (Qum: Dar al-Fiqh, 2006), 2:96-98. In Shi’i jurisprudence, the term nass carries superior evidentiary value that is described as being a direct textual ruling in the form of Qur’anic verses or a hadith deemed to be authentic. See the glossary of Muhammad Baqir al-Sadr, Principles of Islamic Jurisprudence, tr. Arif Abdulhussein (London: ICAS Press, 2003), 137.

  • 77. Shi’as consider the Fourteen Infallibles to include Muhammad, Fatimah, Ali, al-Hasan, al-Husayn, and the remaining nine Infallible Imams who are select descendants of al-Husayn.
  • 78. For a discussion concerning qa’adat sultanat al-nafs, see Irwani, Al-Qawa’id al-Fiqhiyah, 2:96-113. The closest synonymous principle I could discover is qa’adat min al-mulk (the principle regarding authority), namely, the endowed authority given to every free and sane human being to willfully enter into financial contracts and purchase slaves and iqrar al-’uqala’ (affirmation of those with intelligence). This has similar implications indicative of the freedom to spend one’s wealth as one pleases, witness in court, loan money to others, as well as accept the responsibility of taking a loan and paying it back. See al-Tusi, Al-Mabsut, 3:4-6.
  • 79. Naser Makarem Shirazi, Al-Qawa’id al-Fiqhiyah (Qum: Madrassah Ali b. Abi Talib, 2004), 2:20-22.
  • 80. Jawad Maghniyya makes a similar argument in his Al-Fiqh ‘ala Madhahib al-Khamsah, 322. Allama al-Hilli has also used a similar concept, namely, iqrar al-’uqla’: “law aqarat al-Hurrah al-balighah al-’aqilah bi al-nikah, sihhah iqraraha ‘inda ‘ulama’ina ‘ajma’a (If the free pubescent and mentally sound woman decides to marry, her decision is valid in the view of our scholars by consensus)”. He then states that Abu Hanifah used a similar rationale to support the same viewpoint. See Allama al-Hilli, Tadhkira, 2:583-84.
  • 81. The vast majority (if not all) of Imami scholars forbid abortion unless the mother’s life is at risk, as well as organ donation after death. They also do not give a woman the unadulterated right given to men to divorce at will.
  • 82. Al-Khu’i, Muhadarat, 221-23.
  • 83. See Araki, Kitab al-Nikah.
  • 84. This muwaqafah entails that which could be described as itlaqat al-ayat or mutlaq, meaning that the verse may not directly address the issue at hand, but it nevertheless implies a general ethic or ethos of understanding.
  • 85. See Q. 5:2 and Q. 2:232, 235.
  • 86. Q. 2:232. See Jawad Maghniyya, Tafsir al-Kashif (Tehran: Dar al-Kutub al-Islamiyyah, 2003), 1:354-55. While Maghniyya’s use of this verse and others to assert the virgin’s agency is novel from a contemporary perspective earlier scholars (e.g., al-Murtada’, Ibn Idris al-Hilli, and Allama al-Hilli) used the same verse and others, despite their exceedingly unrelated content. In fact, Ibn Idris states that if the verse’s open meaning stands, in order to specify or limit it a proof must be brought forward. See al-Murtada, Ibn Idris al-Hilli, 541-43, Allamah al-Hilli, Tadhkira, 2:585, and al-Murtada, 1Al-Intisar, 19-20.
  • 87. Sayyid Muhammad Husayn Fadlallah has a very similar line of argument. See http://english.bayynat.org.lb/se_002/womenfamily/partner.htm. Similar sentiment has been expressed via email from his office. Maghniyya draws upon similar ethical arguments in his legal work Al-Fiqh ‘ala Madhahib al-Khamsah (Beirut: Dar al-Jawad, 2001), 321-22.
  • 88. For an extensive discussion, see Takim, “Shortened Prayers,” 403-04. I use “apparent” because Imami jurists only consider it ta’arad in an apparent (zahir) manner and because one of the purposes of usuli hermeneutics is to discover the reality and resolve this bifurcation.
  • 89. Taqiyah became especially popular under the Abbasids, when Imami Shi’ism entered a stage of quietism. See Lynda Clarke, “Taqiyya in Twelver Shi’ism” in Reason and Inspiration in Islam, ed. Todd Lawson (London: I.B. Tauris, 2005), 43-63.
  • 90. Susan Spektorsky, Women in Classical Islamic Law (Leiden: Brill Publications, 2010), 67-68.
  • 91. See Muhammad b. Idris al-Shafi’i, Kitab al-Umm (Cairo: Maktaba al-Kalimat al-Azhariyyah, 1961), 7:171-73. Also see Spektorsky, 67-68.
  • 92. Ibid. Also see Muhammad Fadel, “Reinterpreting The Guardians Role in the Islamic Marriage contract: The case of the Maliki School,” The Journal of Islamic Law 3, no. 1 (1998): 3.
  • 93. Ibid.
  • 94. For the opinions of al-Saduq and al-Tusi, see Fadel, “Reinterpreting The Guardians Role in the Islamic Marriage contract: The case of the Maliki School,” The Journal of Islamic Law 3, no. 1 (1998): 3.
  • 95. See Ibn Rushd al-Qurtubi al-Andalusi, Sharh Bidayat al-Mujtahid, ed. Abdullah al-’Abari (Cairo: Dar al-Sala, n.d.), 3:1248. That is, if the virgin marries without her guardian’s consent, is the marriage valid or not?
  • 96. The Imamis hold that only the father and the paternal grandfather have compelling authority or agency.
  • 97. The contemporary Imami jurists that share this position are al-Ruhani, Maghniyya, and Fadlallah.
  • 98. See Abi Zayd Abd Allah b. ‘Umar al-Dabusi al-Hanafi (d. 430 Ah), Kitab al-Nikah min al-Asrar (Beirut: Dar al-Manar, 1993), 191-201. Also see John L. Esposito, Women in Muslim Family Law, 2d ed. (Syracuse: Syracuse University Press, 2001), 15.
  • 99. Muhammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 2003), 466. For an extensive discussion regarding the variant Sunni positions, see Kecia Ali, Marriage and Slavery in Early Islam (Cambridge: Harvard University Press, 2010), 33-41.
  • 100. Muhammad b. Idris al-Shafi’i, Kitab al-Umm (Beirut: Dar al-Wafa’, 2001), 6:47.
  • 101. Al-Murtada’, Al-Intisar, 120 and Muhaqqiq al-Hilli, Mukhtasar al-Nafi’, 183.
  • 102. See note 29. For a detailed discussion regarding Allama al-Hilli’s istidlal and his contention that the ‘illa for agency is her physical and mental maturity, see al-Allamah al-Hilli, Tadhrikat al-Fuqaha’ (Tehran: Maktabat al-Murtadawiyyah li Ihya’ al-Athar al-Ja’fariyyah, 1968), 2:568-88.
  • 103. Imami scholars still debate the age of majority.
  • 104. Ibid., 585.
  • 105. “Naqala al-ikhtilaf al-’ammah fihi wa la na’lamu annahu fi zaman sudur al-khabar aydan, kana ila ayi man al-’aqwal qdatahum amilun, la yumkin lana al-tarjih bihadha al-wajh. See al-Araki, Kitab al-Nikah (Qum: Nur Nagar, 1998), 43.
  • 106. Maria Dakake and others have posited the notion that either the Fifth or the Sixth Imams and their companions formed parts of their theological doctrines in dialogue with Hanafis-Murji’is and Mu’tazalis. One example is the doctrine of postponing opinion, which essentially states that the non-Shi’a sinner has a middle position and it is not known whether he will benefit from salvation or not. Hence it is better to postpone judgment upon him. See Maria Dakake, The Charismatic Community (Albany: State University of new York Press, 2007), 128-39.
  • 107. Liyakat Takim, Heirs, 101-07.
  • 108. Muhammad Taqi al-Hakim states that it is entirely possible that the sa’il (the one posing the question to the Imam) transmitted what he chose (or what was in his best interest) from the Imam, essentially procuring a fatwa for himself. Meanwhile, the imam’s actual fatwa does exist. Furthermore, al-Hakim states that due to the prevalence of divergent legal opinions, including that of the Imam, he (the sa’il) would select what he feels is nearest to the Imam’s views, which may in reality oppose their actual viewpoint, hence creating opposing reports. This is as far as the traditional scholar will go, because accusing the Imam of double speak or contradictory juristic positions would compromise the tenet of infallibility (‘ismah). This is not included within the mujtahid’s exegetical temperament. See Muhammad Taqi al-Hakim, Usul al-’Ammah, 356.
  • 109. Wael B. Hallaq, Shari’a (Cambridge: Cambridge University Press, 2009), 275-276.
  • 110. This respect and obedience owed to the father extends through the paternal line.
  • 111. For a few examples, see Araki, Kitab al-Nikah, 48. al-Ruhani, http://www.imam- rohani.com/arabic/kotob/fokh/21/02.hTM#fehrest18; al-Khu’i, Mabani, 269; Najafi, 183-84; al-Hilli, Mukhtalaf al-Shi’ah, 7:116; and Maghniyya, Fiqh al-Imam al-Sadiq, 5:232.
  • 112. See Sistani, 439 and Subhani, Nizam al-Nikah, 193. Sayyid al-Murtada has claimed that Abu Hanifah held that even if the virgin possesses agency and marries someone (bi ghayri kafu’), the father has the right to intervene and stop the marriage or annul a completed marriage contract. See: al-Murtada, Intsar, 120. With regards to Abu Hanifah’s position, he states: “laysa li waliuha al-’itirad alayha illa idha wada’at nafsaha fi ghayri kafu’”.
  • 113. I owe this insight to Lynda Clarke.
  • 114. Tusi, Istibsar, 3:144. Tusi attempts to interpret the Sa’dan b. Muslim tradition as either applying to temporary marriage or a case of al-’adl. Also see Muhaqqiq al-Hilli, Shara’i’ al-Islam, 2:220. Hilli also claims there is ijma’ on this matter.
  • 115. For a list of related traditions, see Kulyani, Al-Furu’, 347-354.
  • 116. That is, his task would be difficult in legal terms.
  • 117. Subhani, 193-195.
  • 118. Muhaqqiq al-Hilli, Shara’i’ al-Islam, 221. The Arabic reads as follows: “Amma idha ‘adalaha al-wali wa huwa an la yuzawijuha min kafu’in ma’a raghbatiha fa-innahu yajuzu laha an tazawwaja nafsaha wa law karhan ijma’an.” Al-Ruhani expresses a very similar (if not identical) sentiment. http://www.imam-rohani.com/arabic/kotob/fokh/21/02.hTM#fehrest18; Sayyid Sistani, Minhaj al-Salihin (Beirut: Dar al-Muarrikh al-’Arabi, 2003), 3:28.
  • 119. Upon examining the positions and reports concerning the bikr, al-Allamah al-Hilli states that even if we were to give her agency, she would be unaware of the nature and functioning of men (la ta’rifu ahwal al-rijal). Such statements are not universal; rather, they are based upon his common view of the bikr and perhaps those in his region of southern Iraq. See Allamah al-Hilli, Mukhtalaf al-Shi’ah, ibid.
  • 120. Ibid. Also see al-Ruhani, http://www.imamrohani.com/arabic/kotob/fokh/21/02. hTM#fehrest18. Both Subhani and al-Ruhani emphasized the need to prevent any undue hardship as the underlying purpose of the nahi al-’adl clause. I should also note that terms such as undue hardship or haraj, when used in the context of this ruling, are particularly modern. I have not come across it in medieval compendiums on marital law written by Muhaqqiq al-Hilli, Shahid al-Thani, Shaykh al-Tusi, or other jurists.
  • 121. Such a scenario is not implausible; however, each case would have to be evaluated on its own merit.
  • 122. This line of reasoning would indicate the interconnectedness of positive and substantive law in contemporary Imami Shi’ism.
  • 123. Makarim al-Shirazi, 2:25-26.