They argue, further, that al-Zuhrī never stipulated guardianship, and that guardianship is likewise not part of ʿĀʾishah’s legal view.
They also cite the ḥadīth transmitted from Ibn ʿAbbās: “No marriage is valid except with a guardian and two upright witnesses.” Yet there is disagreement over whether this wording is actually raised to the Prophet ﷺ or merely stops with Ibn ʿAbbās himself.
They likewise disagree over the authenticity of the report concerning the Prophet’s marriage to Umm Salamah—peace and blessings be upon him—and his instruction to her son to contract the marriage on his behalf.
As for each side’s recourse to rational considerations, the matter is arguable. One might say that, whenever sound judgment (rushd) is found in a woman, it suffices for the marriage contract just as it suffices for her independent disposition of her property. One could also say that a woman is by nature more inclined toward men than toward squandering wealth; therefore the Sacred Law took precaution by keeping her under permanent restriction in this regard. Although any stigma she might incur by casting herself into an unsuitable match would reflect upon her guardians, it is enough that they retain the right of annulment or appeal to the public authority (ḥisba).
The issue, then, remains open to possibility. Yet what appears more probable is that, had the Lawgiver intended to require a guardian’s consent, He would have specified the kinds, categories, and order of guardians, for postponing clarification beyond the moment of need is impermissible. Since it is impossible for the Prophet ﷺ to have delayed such clarification, and since the universal relevance of the question would have necessitated that the requirement of guardianship be transmitted by recurrent mass report—or something very close to it—yet no such transmission exists, one must conclude one of two things:
- Either guardianship is not a condition for the validity of marriage, and the guardians’ role is limited to annulment or ḥisba; or
- If guardianship is indeed a condition, its validity does not hinge on distinguishing the guardian’s specific attributes, classes, or ranks—hence the weakness of the view that invalidates a contract concluded by a more distant guardian while a nearer one exists.
[Second Point: The Qualities of the Guardian]
Turning to the qualities that confer or negate guardianship, scholars agree that Islam, legal adulthood, and maleness are requisite conditions, and that their opposites—disbelief, minority, and femaleness—remove it.
They differ over three other traits: slavery, open sinfulness (fuṣūq), and financial irresponsibility (safah). Concerning the slave, the majority deny him guardianship, whereas Abū Ḥanīfah permits it. Regarding sound judgment (rushd), the prevailing view in the Mālikī school—held by most of Mālik’s companions—is that it is not a condition. Yet a statement from Mālik agrees with al-Shāfiʿī, and al-Shāfiʿī’s view was adopted by Ashhab and Abū Muṣʿab.
The dispute arises from likening this form of guardianship to that over property. Those who allow guardianship here without requiring financial prudence say that prudence in managing money is not necessary. Those who deem such a distinction impossible insist that financial prudence is indispensable. Thus the two categories, as you see, show that prudence in property matters is distinct from prudence in choosing a suitable spouse for her.
As for uprightness (ʿadālah), the disagreement over it stems from its underlying conceptual basis,