permissible—according to Mālik—for the executor (waṣī) to marry his female ward to himself. He should nevertheless have witnesses attest to her satisfaction, lest she later challenge the contract; if he omits this step yet she openly acknowledges the marriage, it remains valid. The formula is for him to say to her, “I have taken you in marriage for a dower of such-and-such,” whereupon she replies, “I consent,” or, if she is a virgin, her silence suffices as consent.
The same ruling applies to a master who frees his slave-girl and wishes to marry her himself: in Mālik’s view he need not seek the judge’s permission. No guardianship is established by maternal kinship alone, nor does a Muslim exercise guardianship over a non-Muslim relative—be she a daughter, sister, or any other kinswoman—merely by virtue of blood ties. Neither a Muslim nor a Christian may officiate such a woman’s marriage contract; that task belongs to men of her own faith, and some have said she may appoint one of them to act on her behalf.
A Muslim may arrange the marriage of his unbelieving male and female slaves, and any child born to the couple follows the father’s religion, according to Mālik and his colleagues.
A woman may not conclude a marriage contract—whether for herself or for anyone else—regardless of her rank, and whether or not her guardian authorises her. Should she do so, the contract is permanently void, both before and after consummation. The reports from Mālik differ as to how this voiding occurs: one version, preferred by Ibn al-Qāsim, counts it as a divorce, while another treats it as an annulment unconnected to divorce.
When a woman wishes to marry off her bond-woman, she deputes a man to act for her, and he contracts the marriage at her instruction; this, according to Mālik, is the correct procedure. There is no dispute that a woman may not herself contract the marriage of her female slave, nor of a female orphan for whom she is executor. His statements, however, diverge concerning her male slave and male ward: one report has him saying that if she is an executor she may personally conclude the marriage of her male ward, though not her female ward; likewise she may contract the marriage of her male slave, but not her female slave. In essence, she is forbidden to contract for anyone who will never, at any point, possess the capacity to contract for himself.
And the upshot of the school’s doctrine is