THE DISTINGUISHED JURIST’S PRIMER VOL 2 pdf download

The Distinguished Jurist’s Primer Volume 2: Bidayat al-Mujtahid wa Nihayat al-Muqtasid (Great Books of Islamic Civilization) – بداية المجتهد

THE DISTINGUISHED JURIST’S PRIMER VOL 2 – Book Sample

18.2. Chapter 2: Requirements for the Validity of Marriage – The Distinguished Jurist’s Primer Vol 2

This chapter is divided into three elements (arkan; sing. rukn). The first element is about the identification of the formation of this contract. The second element is about the identification of the subject-matter (mafzall) of this contract. The third element is about the identification of the conditions of the contract.

18.2.1. Element I: Formation of the Contract – The Distinguished Jurist’s Primer Vol 2

The study of this element is undertaken from different aspects: the nature of the permission with which the contract is concluded; the person whose permission is acknowledged for the validity of this contract; whether the contract of marriage is permitted with an option; and whether the contract is obligatory with delay from one of the parties, or whether immediate acceptance is a condition?

18.2.1.1. Aspect 1: Consent in marriage

Permission-in marriage is of two types. It takes place for men and deflowered women by means of words and for consulted virgin women through their silence, that is, their consent; rejection, however, is by words. There is no dispute about this, as a whole, except what is narrated from the followers of al­Shafi’t that the permission of the virgin is by words,

when the person giving her away in marriage (her guardian) is other than the father or the grandfather. The majority inclined towards permission through silence because of what is established from the Prophet (God’s peace and blessings be upon him) that “the deflowered woman has a greater right over herself than her guardian (waif), but the virgin is to be asked about herself and her silence is her permission”.

They agreed that in order to be valid, the marriage contract of a person whose permission is by words has to be concluded by the use of the word “nikah” or “tazwij”. They differed about its conclusion through the word “gift” or the word “sale” or “sacrifice”. Some jurists, like Malik and Abu Hanifa, permitted this. Al-Shafi’ said that it cannnot be concluded except by the word “nikah,” or by the word “tazwij’.

The reason for their disagreement lies in whether it is a contract ii]. whic?, alc;,.ng with inteqtion (nryya), a particular word is required, or whether the employment of such a word is not necessary for its validity. Those who attach it to the category of contracts that require the consideration of both factors said that the contract is not concluded except by the word “nikah” or “tazwij’.

Those who said that particular words are not a condition in it, keeping in view those contracts in which words are not a condition, permitted marriage by means of any word that renders the legal meaning, that .is, if between it and the legal meaning there is a common basis.

18.2.1.2. Aspect 2: The person whose consent is taken into account for the validity of the contract – The Distinguished Jurist’s Primer Vol 2

The person whose acceptance is taken into account for the validity of this contract is identified in the law (shar’) in two ways. In the first, the consent of the parties (themselves) to the marriage, the groom and the bride, is taken into account, either with the consent of the guardian, ·or without his consent, according to the opinion of those who do not stipulate a guardian in the case of consent by a woman who possesses the right herself.

In the second, the consent of the guardians alone is taken into account. In both methods there arise issues that are agreed upon and those that are disputed. We shall mention out of these the (issues that furnish) principles and rules.

We say: The jurists agreed about the stipulation of the consent and acceptance of men who had attained puberty, were free, and were in charge of their own affairs. They disagreed whether the master could force his slave to marry, and the executor (was,) his baligh ((The term baligh is used for someone who has attained the age of puberty (baligh).

This is the age of majority.in Islamic law, however, the terms “major” and “adult” are being avoided, as they indicate a person who is usually older than the baligh. The age’ of’ baligh depends on the actual physical puberty of the individual concerned, and may start at twelve for a boy and even lower for a girl. In the absence of any physical signs of puberty, the presumption of puberty is linked to different ages determined by the faqahas.)) interdicted protégé. Malik said that the master could force his slave to marry.

Is marriage a right of the master

The same is the opinion of Abu Hanifa. Al-Shafi’ said that he is not to be forced. The reason for their disagreement is based on whether this (the contract of marriage) is one of the rights of the master. Similarly, they disagreed about the executor forcing his interdicted ward, and this dispute exists within the school (of Malik).

The reason for their disagreement, thus, lies in whether marriage is one of the interests (maslaha) secured for him, or is not an interest but a means for pleasure. On the basis of the opinion that marriage is obligatory there should be no hesitation ·in this.

On the question of women, whose consent is taken into account in marriage, they agreed that the consent of the deflowered baligh (major) woman is to be taken into account, because of the saying of the Prophet (God’s peace and blessings be upon him), “The deflowered woman expresses her own consent”, except what is narrated from al-Hasan al-Basri.

They disagreed· about the baligh virgin and the non-baligh deflowered’ girl (when she does not exhibit bad behaviour). About the baligh virgin, Malik, al-Shafi’ and Ibn Abi Laylah said that it is only for the father to force her to marry. Abo Hanifa, al-Thawri, al­A wza’i, Abu Thawri and a group of jurists said that it is necessary to take her consent into consideration. Malik agreed with them about the virgin spinster in one of his opinions.

18.2.2.1.3. Aspect 3: Kinds of guardianship – The Distinguished Jurist’s Primer Vol 2

The bases for the kinds of guardianship, according to those who uphold it, are three: descent, authority, and superior and subordinate clientage. According to Malik, the qualification of Islam by itself is sufficient for guardianship over one of a low social status.

They differed about the waṣi (executor). Malik said that the waṣi can be a guardian, while al-Shafi’i prohibited this. The reason for disagreement is their dispute whether the nature of guardianship is such that it makes deputization possible. It is for the very same reason that they disagreed about agency (wakala) in marriage, but the majority upheld it, the exception being Abu Thawr. There is no difference between agency and executorship, except that an executor is an agent after death, while agency is terminated at death.

They disagreed about the priorities in guardianship on the basis of lineage. According to Malik, guardianship is allocated among residuaries, excluding the son (in the case of the mother), thus, whoever is the closest from among the residuaries has the right to be a guardian.

The sons, according to him, even if in the lowest rank of descendants, have a higher priority. They are followed by the fathers, uncles german, consanguine uncles, sons of the brother german, sons of consanguine brothers, and the grandfathers on the father’s side, in that order. Al-Mughira said that the grandfather and his father have a higher priority than the brother and his son, for he (the brother or his son) is not an outsider, then come the uncles graded like the brothers, however low in rank, followed by the client (maw/a) and then by the sultan.

The higher-order client, according to ·him (Malik), has a right prior to that of the lower-order client. The executor, according to him, has priority over the guardian, through lineage, that is, the executor appointed by the father. His disciples differed about the priority of the father’s executor over a guardian through lineage. Ibn al-Qasim, in conformity with Malik’s opinion, said· that the- executor has a superior right, while ·Ibn- al-Majishon and Ibn ‘Abd al-Hakam said that the guardian has a higher priority.

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