Wali (Islamic legal guardian)

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

This article is about the Islamic legal concept of Wali. For Saints in Islam, see Wali. For the administrative title, see Wāli. For the town and commune of Mauritania, see Waly Diantang, Mauritania. For use of Waliullah as a given name, see Waliullah (name).

Traditionally girls and women have been forbidden from travelling, conducting official business, or undergoing certain medical procedures without permission from their male guardian in conservative Muslim countries.[3] Some countries, notably Saudi Arabia, have maintained such practices in law up to the present. In 2019, Saudi Arabia loosened many restrictions, allowing women to obtain passports, travel freely, and obtain employment without permission from a male guardian, although many restrictions still remain.[4][5]

Scriptural basis

At least according to the traditional interpretation of the Saudi religious establishment, the concept of guardianship over women is derived from Sura 4 verse 34 of the Quran, which states,

  • “Men are the protectors and maintainers of women, because God has given the one more [strength] than the other, and because they support them from their means.”[6]

Wali as agent of the bride

Muslim scholars have held that in order for the nikah (marriage) of an adult woman to be valid, there must be consent not only of the bride and groom but also of the bride's wali mujbir, her male guardian.[7] This view is held by most Muslim scholars, but the Hanafi school of fiqh hold that the wali's permission is not necessary for the nikah.[8]

The wali is typically the father or, failing that, another male relative, and failing that a qadi. The order of succession of who may serve as a wali is often spelled out by jurists,[9] such as in this list written by Ibn Abd al-Wahhab: if the father is otherwise unavailable guardianship should be assigned

first to the woman's brother, then to the paternal grandfather than to the woman's son.... [then it] passes to the tribe of the brother, unless it is low/base/despicable, ... [then the] paternal uncle takes over, followed by his son, then other relatives in paternal relationships. ... Maternal relative only have a claim to marriage guardianship if there are not paternal relatives. ... the sultan or political leader may serve as the marriage guardian ... only if he is a just man .... Thus the critical factor in selecting an alternative marriage guardian is the man's adherence to justice, not his political position.[10]

In the case of the woman's first marriage, the bride's silence is considered consent when a wali proposes a groom to her.[9]

Types

The Hanafi school of Islamic law is unique among madhhab (school of jurisprudence) in recognizing the validity of a marriage where the woman acts on her own behalf and is not represented by a male wali.[11][8][12][13]

At least in the Hanafi school of fiqh, there is a distinction between a Wali ijbar and a wali ikhtiyar. A wali ijbar is a guardian who is "given the power of force" and has the right to arrange the marriage of a woman "without her permission". A wali ikhtiyar does "not have the authority to force", and cannot arrange a marriage without the bride's permission. The marriage requires "a verbal answer" from the potential bride to go ahead.[14]

According to the founder of the Malaki school of fiqh, Malik ibn Anas, there are two kinds of custody or guardianship – khassa (specific) and `amma (general). Specific guardianship belongs to the patriarchal lineage – father, grandfather, etc. (explained above). General guardianship "was connected completely with Islam, and every Muslim male". An example of `amma guardianship is where a Muslim man arranges a marriage for a woman who does "not have a father, or other male family members".[14]

The founder of the Hanbali school, Ahmad ibn Hanbal, believed that the wali ijbar was the right of the father or, if there was no father of a judge (similar to Malik's position), with other imams that the role of a wali ikhtiyar "could be taken by all kinds of wali", not necessarily a relative on the father's side of the family.[14]

Before marriage

Before marriage, the presence of a mahram, (unmarriageable male relative) should be present whenever an unmarried woman meets the opposite sex and for other issues. (At least in the opinion of many conservative Muslims such as Ustadha Nasari, who points to Quranic verse Al-Tauba, 9:71 where "awliya", (plural of wali) is translated as "protector".[15]

Husbands as "guardians"

While a husband or a mahram can not be a wali, they also have "protector" status over women away after their marriage, and are sometimes referred to as "guardians" of their wives and families in English language sources.[16][17] As protector, the husbands permission is also required for travel in some Muslim countries.

Yemen

In Yemen, as of 2005, women are not legally permitted a passport without the approval of their wali, but are allowed to travel without permission once they have a passport. However law enforcement often disregard this freedom and "restrict a woman's right to travel if her guardian disapproves and reports her to the authorities."[18] In 2013 according to Rothna Begum, of Human Rights Watch, women could not leave their house without her husband's permission, with a few emergency exceptions, such as taking care of ailing parents.

Saudi Arabia
Main article: Women's rights in Saudi Arabia § Male guardians

Human Rights Watch (HRW) documented the Saudi implementation of the wali, mahram and mu'arif system in 2016. HRW stated that "in Saudi Arabia, a woman's life is controlled by a man from birth until death. Every Saudi woman must have a male guardian, normally a father or husband, but in some cases a brother or even a son, who has the power to make a range of critical decisions on her behalf."[19] So that women could "not apply for a passport without male guardian approval and require permission to travel outside the country."[19]

In the 2010s, Saudi women organised an anti male-guardianship campaign.[20][21] Changes were gradually made so that by 2016 women were allowed "to secure their own ID cards" and divorced and widowed women are allowed family cards, and the requirement "that a woman bring a male relative to identify them in court" has been removed.)[19] In 2019 women were granted "the right to travel without a male relative’s permission, to receive equal treatment in the workplace and to obtain family documents from the government", but still lacked the right "to marry or live on their own" without a male wali's permission.[5]

Guardianship of the Islamic Jurist
Further information: Guardianship of the Islamic Jurist and Islamic Government: Governance of the Jurist

In Shia Islam, Islamic Jurists (faqīh, pl. fuqahā') often take on the duty of wali. Guardianship of the Islamic Jurist, (Persian: ولایت فقیه, Vilayat-e Faqih; Arabic: ولاية الفقيه, Wilayat al-Faqih), is a doctrine asserting that Islam gives Islamic jurists custodianship over people. (This applies to Shia Islam "in the absence of an infallible Imam", i.e. after the 12th Imam had gone into Occultation in 874 CE.)[22] Prior to the Iranian Revolution this referred to guardianship of non-litigious matters (al-omour al-hesbiah)[23] including religious endowments (Waqf),[24] judicial matters,[25] and the property for which no specific person is responsible.

Islamic Republic of Iran

With the establishment of the Islamic Republic of Iran which institutionalized the teachings of the Ayatollah Ruhollah Khomeini, most references to Guardianship of the Islamic Jurist referred to the idea that a faqīh should have guardianship over all issues for which Prophet of Islam and Shi'a Imam have responsibility, including how people are governed. This idea of guardianship forms the basis of the Constitution of the Islamic Republic of Iran which calls for a Vali-ye faqih (Guardian Jurist), to serve as the Supreme Leader of the government.[26][27] In the context of Iran, (the only country where this theory is being practiced), Guardianship of the Islamic Jurist is often referred to as "rule by the jurisprudent", "rule of the Islamic jurist", or "Governance of the Jurist".


See also

References
  1. Robert S. Kramer; Richard A. Lobban Jr.; Carolyn Fluehr-Lobban (2013). Historical Dictionary of the Sudan. Historical Dictionaries of Africa (4 ed.). Lanham, Maryland, US: Scarecrow Press, an imprint of Rowman & Littlefield. p. 361. ISBN 978-0-8108-6180-0. Retrieved 2 May 2015. QUBBA. The Arabic name for the tomb of a holy man... A qubba is usually erected over the grave of a holy man identified variously as wali (saint), faki, or shaykh since, according to folk Islam, this is where his baraka [blessings] is believed to be strongest...
  2. Hans Wehr, [Arab-English Dictionary] p. 1289
  3. "World Report 2013 – Saudi Arabia". 2013. Human Rights Watch. Archived from the original on 2014-01-09. Retrieved 22 February 2014.
  4. "Saudi Arabia: Important Advances for Saudi Women". Human Rights Watch. 2 August 2019. Retrieved 26 November 2020.
  5. Hubbard, Ben; Yee, Vivian (2 August 2019). "Saudi Arabia Extends New Rights to Women in Blow to Oppressive System". New York Times. Retrieved 26 November 2020.
  6. "II. Human Rights Violations Resulting from Male Guardianship and Sex Segregation". Human Rights Watch. 2008. Retrieved 26 November 2020.
  7. al-Munajjid, Muhammad Saalih (General Supervisor) (2006-11-25). "She married without her wali's consent and the marriage contract was done without her being present – islamqa.info". islamqa.info. Retrieved 2017-02-13.
  8. "The Hanafi School and the issue of Wali". Islamweb. Retrieved 2017-02-13.
  9. Sahih Muslim, The Book of Marriage (Kitab Al-Nikah), Book 008, Number 3303.
  10. DeLong-Bas, Natana J. (2004). Wahhabi Islam: From Revival and Reform to Global Jihad (First ed.). New York: Oxford University Press, US. p. 142. ISBN 0-19-516991-3.
  11. Fluehr-Lobban, Carolyn (2013-10-15). Islamic Law and Society in the Sudan. Routledge. p. 105. ISBN 9781134540358.
  12. Al-Hibri, Azizah Y. (2005). "The Nature of Islamic Marriage". In Witte, John; Eliza Ellison (eds.). Covenant Marriage in Comparative Perspective. William B. Eerdmans Publishing. p. 204. ISBN 9780802829931. Retrieved 13 February 2017.
  13. Zaman, Muhammad Qasim (2012). Modern Islamic Thought in a Radical Age: Religious Authority and Internal ... Cambridge University Press. p. 188. ISBN 9781107096455. Retrieved 26 November 2020.
  14. Hasyim, Syafiq (2006). Understanding Women in Islam: An Indonesian Perspective. Equinox Publishing. pp. 104+. ISBN 9789793780191. Retrieved 16 February 2017.
  15. Ansari, Ustadha Zaynab (2012-09-14). "Confusion on Limits to talking to the opposite sex". IslamQA. Retrieved 2017-02-19.
  16. Caryle Murphy (Dec 9, 2014). "Laws of Men: In Saudi Arabia, women are still assigned male 'guardians'". The GroundTruth Project. Retrieved 2017-02-19.
  17. "Part 2: The Duties of Men". Al-Islam.org. Retrieved 2017-02-19.
  18. Nazir, Sameena; Tomppert, Leigh (2005-01-01). Women's Rights in the Middle East and North Africa: Citizenship and Justice. Rowman & Littlefield. p. 341. ISBN 9780742549920.
  19. "Boxed In — Women and Saudi Arabia's Male Guardianship System". Human Rights Watch. 2016-07-16. Archived from the original on 2016-08-26. Retrieved 2018-05-22.
  20. Hawari, Walaa (2011-11-14). "Women intensify campaign against legal guardian". Arab News. Archived from the original on 2012-01-25. Retrieved 2012-01-25.
  21. "Thousands of Saudis sign petition to end male guardianship of women". The Guardian. 2016-09-26. Archived from the original on 2018-05-21. Retrieved 2018-05-22.
  22. "What is Wilayat al-Faqih?". Al-Islam.org. Retrieved 2017-02-13.
  23. "Archived copy". Archived from the original on September 13, 2006. Retrieved August 23, 2006.CS1 maint: archived copy as title (link)
  24. http://english.awqaf.ir/
  25. Interview: Hamid al-Bayati (May 2003) Archived December 9, 2006, at the Wayback Machine
  26. Taking Stock of a Quarter Century of the Islamic Republic of Iran, Wilfried Buchta, Harvard Law School, June 2005, pp. 5–6
  27. Constitution of the Islamic Republic of Iran, section 8 Archived November 23, 2010, at the Wayback Machine Article 109 states an essential qualification of "the Leader" is "scholarship, as required for performing the functions of mufti in different fields of fiqh"
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