Welcome! Welcome! Welcome to today’s forum. And you don’t want to know why this posting is appearing today instead of yesterday, so I’ll skip that. The discussion today is in line with the last two discussions. What do we think of when we hear or see the word, guardian? Yes, kids come to mind. Custody battles or child welfare cases scattered all around have made the term trite. But children come to mind. Where a parent dies, as in the Michael Jackson case, the question is thrust center stage: who is the child’s /children’s legal guardian? Children come to mind when we talk about “guardianship,” and I should also note here that the law does not consider children to have the capacity to enter a valid legal contract. My advice to you: don’t enter a contract with a child! I point that out because the reasoning underlying incapacity is similar to that which underlies guardianship. Don’t take your focus off guardianship.
Something else comes to mind when I think of guardianship: an adult that a court declares incompetent (one who, perhaps, because of age and illness has suffered mental impairment); he/she also requires a legal guardian. But it would probably strike you as absurd if it were announced today that an otherwise competent adult could no longer do or take action concerning his or her life without a legal guardian!
Well, did you know that in the Kingdom of Saudi Arabia, a woman needs a marriage guardian to enter a marriage or get a divorce? Zainah Almihdar’s insightful article entitled, “Human Rights of Women and Children under the Islamic Law of Personal Status and Its Application in Saudi Arabia” sheds important light on this issue.
From the four main Sunni schools of Islamic jurisprudence, Saudi Arabia has chosen the Hanbali School to govern its laws. Almihdar tells us that “ Under Hanbali law a woman may never conclude her own marriage contract; she needs a marriage guardian- normally the father- to act on her behalf. There is no set minimum age for marriage in traditional Islamic Law. A father or his appointed executor acting as guardians, also possess the right of contracting their previously unmarried wards into marriage without their consent. However, although this is the generally stated position of the Hanbali School, there is another recorded opinion that the consent of both parties is essential for a marriage contract and that there are numerous hadiths (sayings) of the Prophet in which he had stated that a virgin should not be given into marriage without her consent10.”
She needs a marriage guardian to enter marriage! A father’s “wards” (a ward is “someone under the protection or in the custody of another”) that have never been married can be contracted into marriage without their consent. Indeed, there is probably no better display of the assumption that father knows best; and I would not rule out a hint at ownership. Are the “sayings” or “hadiths” that Almihdar refers to that declare that a virgin’s consent is required just words? Do you think they are meaningful in the face of the generally stated position of Hanbali law?
Of course, there are those who have said, “Why is any of this important? After all, Saudi law is Saudi law; live with it.” But not even Saudi Arabia could really live with it in this day and age. Saudi Arabia signed/ratified, albeit with general and specific reservations, the United Nations Convention on Elimination of Discrimination against Women (CEDAW). This is one of four important UN treatises that Saudi Arabia has signed.
According to our author: “Article 16 (1) subsections (a) and (c) of CEDAW provide that men and women are entitled to equal rights and responsibilities in entering into a marriage, during a marriage and upon the dissolution of the marriage. Article 16 (1) (b) specifically states that women shall have the same right of freedom to choose the spouse and to only enter into a marriage with free and full consent. SA has not made a specific reservation to article 16, but it has entered a general reservation against all articles that do not comply with Shari’a principles.”
Some might correctly point out that instead of being a reality in women’s lives Article 16 of CEDAW is an embodiment of hope spilling out of a soft-heart view of the world. But then the more insistent in substituting a bit of fiction for reality might contend that CEDAW is reality in the Kingdom of Saudi Arabia, even in the face of Hanbali law! To support their position, they might look to “Article 33 (1) of the Arab charter on Human Rights which states: ‘... Men and women of marrying age have the right to marry and to found a family according to the rules and conditions of marriage. No marriage can take place without the full and free consent of both parties. The laws in force regulate the rights and duties of the man and woman as to marriage, during marriage and at its dissolution.’” They might suggest that it is not difficult to see that Article 33(1) from the Arab Charter is in line with CEDAW.
But what in the world are “the laws in force” that “regulate the rights and duties of the man and women as to marriage, during marriage and at its dissolution.” Wait…wait…wait! Let me guess…Hanbali law and Quranic sayings that give the edge to the man within the law whether in terms of authority or protective responsibility? Does this mean that Hanbali trumps CEDAW? And is the Arab Charter on Human Rights serious in its partial consistency with CEDAW or is it a framework designed to give a progressive face to the Arab world on women’s rights in spite of the reality?
A soft-heart view does not rush to judgment, it searches for willing hearts, hearts and minds desirous of change despite susceptibility to many other pressures; soft-hearts strive to minimize the degradation of human life, work for the restoration of human rights, and engage in a relentless elevation of the human spirit.
We follow Almihdar in coming to this matter with a soft-heart view (not soft-hearted). At the end of her article, she states: “Human rights initiatives are gaining in popularity in society, the media and even the royal family. All these fast moving improvements were not even heard of until recently. Positive change has come to SA and I believe that it is safe to assume that further change is inevitable.”
My deepest thanks for stopping by… As always, change begins with you!
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