From the standpoint of the Sacred Law, then, the order to prevent the union applies equally to guardians and to all others; the mere fact that the guardian is commanded to prevent does not confer upon him any special authority to grant permission. In this respect he is, at base, no different from any unrelated man.

Even supposing we said that the verse addresses guardians and that it makes their permission a condition for the validity of marriage, the text would still be too general to found a ruling, for it gives no indication of the various classes of guardians, their qualifications, or their hierarchical order—and clarification may not be deferred beyond the time of need. Had the matter been regulated by a known ruling, it would have been transmitted through recurrent mass report, or something very close to it, because it concerns an issue that touches everyone. It is also known that in Madinah there were people who had no guardian, yet nothing has been reported showing that the Prophet (peace and blessings be upon him) himself concluded their marriages or appointed anyone else to do so on their behalf. Moreover, the aim of the verse is not to legislate guardianship; its aim is clearly to forbid marriage with male and female idolaters. Allah knows best.

As for the ḥadīth of ʿĀʾishah, scholars differ over whether acting upon it is obligatory; the stronger view is that anything whose authenticity is not unanimously agreed upon does not oblige action. Even if we concede its soundness, it establishes no more than the requirement of the guardian’s permission for a woman who actually has a guardian—that is, one who is under a patron’s authority. And even if we grant that the report is general for every woman, it nowhere states that a woman may not contract for herself—meaning that she may not be the one to execute the contract. The more apparent purport is that, once the guardian has given permission, she may conclude the contract herself without the validity of the marriage depending on the guardian’s presence as a witness.

With respect to the other party’s proof, the Almighty’s words,

“there is no blame on you regarding what they do with themselves in an honorable manner” (al-Baqarah 2:234),

what is understood from this is a prohibition against censuring them for acting independently of their guardians. The only matter in which a woman could act on her own, apart from the guardian, is the marriage contract. Hence the plain sense of the verse—Allah knows best—is that she may contract the marriage herself, while the guardians retain the right to annul it if it is not concluded honorably. This appears to be what the Law indicates, yet no jurist has actually adopted this position. To invoke part of the outward sense of the verse in support of one’s opinion while ignoring the rest is a weak form of argument.

Attributing the act of marriage to women in certain verses provides no proof that they alone must execute the contract; nevertheless, the default rule is that the one to whom an act is attributed is the one who carries it out, unless evidence shows otherwise. As for the ḥadīth of Ibn ʿAbbās, by my life it plainly distinguishes between the previously married woman (thayyib) and the virgin (bikr): if each must be consulted while the guardian concludes the contract for both, how—pray tell—can the divorcee or widow be said to have more right over herself than her guardian?

The report transmitted by al-Zuhrī is, in fact, more likely to agree with this ḥadīth than to contradict it; it is possible that the only difference between them concerns silence and explicit speech, silence being sufficient for the contract.

Citing the verse,

“there is no blame on you regarding what they do with themselves in an honorable manner” (al-Baqarah 2:234),

is a clearer proof that the woman may execute the contract herself than citing His words,

“Do not marry the polytheists [to your women] until they believe” (al-Baqarah 2:221),

as proof that the guardian must execute it.

The Ḥanafī jurists have declared the ḥadīth of ʿĀʾishah weak, arguing that it is transmitted by a group reporting from Ibn Jurayj from al-Zuhrī. Ibn ʿUlayyah relates that Ibn Jurayj asked al-Zuhrī about the report and the latter did not recognize it. They add as evidence for this