I mean this very guardianship: for when uprightness is lacking, one cannot be confident that the guardian will choose a suitable husband for her.
One might reply that the impulse that leads guardians to find an appropriate match for the women under their charge is not the quality of moral uprightness, but rather their fear that shame might attach to them—a fear that is innate—whereas that other uprightness is something acquired. Because of the intrinsic deficiency of the slave, the same dispute that arises over his uprightness also arises over his capacity to act as guardian.
[Third Section: The Classes of Guardians and Their Order]
Among those who uphold the requirement of guardianship, its recognized sources are: 1) kinship, 2) governmental authority, and 3) patronage—both the higher patron (master) and the lower patron (freedman). In Mālik’s view, mere adherence to Islam is itself a qualification that confers guardianship over a woman of humble standing.
They differ concerning the testamentary executor. Mālik considers the executor to be a guardian, whereas al-Shāfiʿī does not. The root of their disagreement is whether the quality of guardianship is something that may be delegated.
For the same reason they disagreed about the permissibility of agency (wakālah) in marriage, although the majority allow it, with the exception of Abū Thawr. There is, in fact, no essential difference between acting through an agent and acting through an executor: the executor is simply an agent after death, while an agency contract terminates upon death.
They also disagreed over the sequence of kin-based guardianship. Mālik holds that guardianship follows the principle of agnatic relationship (taʿṣīb) with one exception—the son. Thus, whoever is the nearer agnate has the stronger claim. In his order, the sons—no matter how remote—are given priority, followed by the fathers, the full brothers, the paternal brothers, the sons of full brothers, the sons of paternal brothers, and finally the paternal grandfathers, however elevated.
Al-Mughīrah maintained that the grandfather and his father take precedence over the brother and his son (who are not of the same direct line), after which come the paternal uncles in the same order as the brothers, however remote; then the patron; and finally the ruler. In his opinion the higher patron outranks the lower, and the executor outranks the kin guardian—that is, the father’s executor.
Al-Mughīrah’s followers then disagreed: who is the more entitled—the father’s executor or the kin guardian? Ibn al-Qāsim held, like Mālik, that the executor has priority, whereas Ibn al-Mājishūn and Ibn ʿAbd al-Ḥakam gave precedence to the kin guardian.
Al-Shāfiʿī departed from Mālik on the guardianship of the son, disallowing it entirely, and also in placing the brothers before the grandfather, saying: “The son has no guardianship.” A report from Mālik, however, gives the father precedence over the son, and this is regarded as the sounder view. Mālik also said that the grandfather outranks the brother, a position likewise adopted by al-Mughīrah.
Al-Shāfiʿī built his view on the criterion of agnatic ties, holding that the woman’s own child is not one of her agnates, and citing the statement of ʿUmar: “No woman may be married except with the permission of her guardian, a sensible member of her family, or the ruler.” Mālik did not apply this to the son, relying instead on the report of Umm Salamah: “The Prophet—peace and blessings be upon him—commanded her son to marry her to him.” Moreover, both Mālik and al-Shāfiʿī agree that the son inherits the obligatory patronage (walāʾ) due to the mother, and patronage in their view belongs to the agnates.
Their disagreement over the grandfather stems from their differing assessments of who is nearer: the grandfather or the brother.
Three well-known legal questions hinge upon the order of guardians:
- When a more distant guardian contracts the marriage while a nearer one is present.
- When the nearer guardian is absent—does guardianship pass to the more distant relative or to the ruler?