GUARDIANSHIP AUTHORITY IN MARRIAGE WITHIN SHIITE SCHOOLS: A COMPARATIVE ANALYSIS

İngilizce (OpenAlex)

Guardianship authority (wilāyah) in the marriage contract stands out as a significant and debated issue in Islamic family law, particularly in terms of establishing a balance between individual consent and the interests of the family and society. Although there are common principles regarding this issue among Shiite schools of thought, there are distinct differences in opinion concerning the scope of guardianship, the limits of compulsory guardianship (wilāyat al-ijbār), the role of the woman’s consent in the validity of the marriage, and the legal status of marriage contracts concluded without a guardian. This study aims to examine the approaches of the Ja‘farī, Zaydī, and Ismā‘īlī schools -three prominent Shiite branches- regarding guardianship authority in marriage through a comparative methodology. The study adopts a qualitative research method, analyzing the primary sources of these schools based on classical jurisprudence (fiqh) literature. The views of the schools are handled comparatively within the framework of the identity of the guardian (walī), the acceptance of compulsory guardianship, the legal value of the woman's consent, the validity of marriage contracts concluded without a guardian or permission, and the jurisdictional areas of the judge (qāḍī), executor (waṣī), master, and agent (wakīl). As a result of the analysis, it has been determined that in the Ja‘farī school, guardianship is predominantly valid for minors and those lacking legal capacity; in the Zaydī school, guardianship is strictly limited by the consent of the sane and pubescent (āqīl-bāligh) woman; and in the Ismā‘īlī school, while the authority of guardianship is restricted to a narrow framework consisting of the father and the paternal grandfather, special importance is attributed to the institutions of consent and proxy (wakālah).