Scholarly Differences:
It has already been shown that the presence of a guardian (walī) is a prerequisite for the validity of the marriage contract, and that this is the view of the majority of scholars, including the Three Imams—Mālik, al-Shāfiʿī, and Aḥmad.
Imam Abū Ḥanīfa and his followers, however, do not regard a guardian as necessary. They advance numerous proofs, and the debate is lengthy. One of their principal arguments is to draw an analogy between marriage and sale: just as a woman may manage and sell her own property, they say, she may likewise contract her own marriage.
The scholars reply that this analogy is unsound for three reasons:
- It sets analogy in opposition to an explicit textual proof, and such a move is impermissible and rejected in legal methodology.
- Valid analogy requires equivalence between the two matters compared, and that equivalence is absent here. Marriage—given its gravity, the careful consideration it demands, and the far-reaching consequences it entails—differs profoundly from sale, which is straightforward, light in outcome, and of modest significance.
- Contracting a marriage with certain suitors can bring disgrace and dishonor upon the entire family, not just upon the woman herself; the guardians therefore have a legitimate stake in the affinal bond, whether it proves honorable or otherwise.
The Ḥanafīs have sometimes attempted to weaken the hadith by criticizing its chain of transmission, claiming that al-Zuhrī once said to Sulaymān ibn Mūsā, “I do not know this hadith.” The rejoinder is that the report reaches us through numerous routes related by eminent imams and prominent transmitters. At other times they contend that the term “bāṭil” (“invalid”) in the hadith is to be interpreted as “on the verge of invalidity,” but this is a strained reading. They may also claim that the woman referred to is insane or a minor, and so forth—arguments that have been refuted. The textual proofs are clear and need no such forced interpretations; Allah knows best.
Among the evidences for requiring a guardian is the very hadith that heads this chapter.