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

This Essay takes a critical look at a doctrine that is often cited - by Muslims and non-Muslims alike - as indicative of Islamic law's systematic gender discrimination in favor of men and against women: the legal requirement that a Muslim woman, prior to her marriage, must gain the permission of her father, or another male relative. This is in contrast to a Muslim male, who, it is said, may marry without the permission of his father, or any other relative. This essay will not attempt a detailed analysis of all the rules regarding the role of the guardian in the marriage contract. Instead, it attempts to provide a broad overview of the competing interpretations that have been given to the guardian's role in one school of Islamic law, the Maliki school. Based on a close reading of the relevant Maliki doctrines, one can make the following conclusions. First, there is no basis to conclude that under Maliki doctrine female autonomy with respect to marriage is subordinated to the private interests of her male relatives. Second, Maliki doctrine did discriminate against females with respect to emancipation from the guardianship of their fathers based on a legal presumption that females were prone to squandering their property. According to Malikis, this fact prevented females from enjoying full legal capacity until they proved in court, using a procedure called tarshid, their competency in managing their economic affairs. This was in contrast to male children, who were assumed to have such capacity simultaneously with the onset of physical puberty. Once a woman was declared to be financially competent, whether married or not, she attained full legal capacity, including, the capacity to marry without the approval of her father or other male relatives, and indeed, she could marry in spite of them. Third, even taking the Maliki presumption regarding the generalized financial incompetence of women at face value, a woman, after having attained puberty, should have been treated as a safiha - a person lacking capacity to manage her property - rather than as a minor. In that case, the father would have lost the power to contract a marriage for his unmarried - but not yet fully emancipated daughter - without her consent. Fourth, (and finally) the fact that an adult woman could substitute the consent of the judge (who was obliged to consent in this case) for that of her family suggests that the general requirement in Islamic law that a guardian consent to the marriage is akin to the general power of contemporary states to set the general terms upon which marriage is available and to issue licenses therefore. The fact that as a default matter, Islamic law assigned this task in the first instance to fathers was thus based on the notion that the father would be the best representative of the public's interests in the marriage