The concept of wilaya (guardianship over women) is key to discrimination against women. Debates over different interpretations of guardianship under Muslim law ultimately fail to address the key premises underlying hegemonic notions of masculinity and femininity and the institutions that propagate them argues Afaf Jabiri
Some provisions of Muslim Family law lie at the heart of the workings of patriarchy in the Arab region. One such provision, which deserves to receive detailed attention, is the system of guardianship (wilaya) that forms the very basis of women’s legal and social subordination. Family law in the Arab region routinely includes provisions that grant a wali (a male blood relative) the right to have wilaya (guardianship) over women. There are two types of guardianship provisions: the first pertain specifically to women’s choice of marriage partners, and the second, applies in general terms. These general provisions place a woman under the guardianship of a man either until she reaches certain age (for example, in Jordan women are placed under wilaya until the age of 30), or lifelong (for instance, in Yemen and Saudi Arabia). Wilaya provisions define women as legal minors and dependent subjects. The legal provisions of wilaya over women do not only restrict women’s scope of activity but, more importantly, represent a comprehensive, dynamic and multi-stranded discourse that reproduces hegemonic notions of normative femininity and masculinity.
It is necessary first to examine wilaya in broad terms, and then to focus on how it relates to the gender regime within Jordan’s state institutions of law, religion, and tribal customary laws and practices. By showing how the notion of wilaya impacts on the production of institutional knowledge about normative femininity and masculinity, it is possible to demonstrate that its primary intention is to perpetuate women’s subordinate positions in relation to men.
The definition of wilaya in most of the fiqh literature is: “The legal authority vested in a person who is fully qualified and competent to safeguard the interests and rights of another who is incapable of doing so independently.” The power that is signified by wilaya is assumed to be vested in mature Muslim males. The meaning of being female is implicit in the second part of the definition above, namely, “incapable”, “dependent” “irrational” or “having some sort of deficiency”.
There are three legitimate grounds under the interpretations of Islamic fiqh for a person to be placed under wilaya: minority, insanity, and the state of being female. This last ground is justified in some of the schools’ literature as due to the “female as being an inexperienced person who needs care and protection”. According to Abu Zahra, an influential Egyptian scholar in the field of contemporary Islamic studies, in cases of minority, the wilaya over a person ends by the time the person is mature. If the reason for wilaya over a person is insanity, it then it lapses when mental health is restored, whereas in the case of being female, wilaya should be perpetual. This is justified on the grounds that wilaya over women is deemed to protect the interests of both women and the community as a whole. According to this logic, immaturity and irrationality are enduring female characteristics.
The only differing view is that of the Hanafi school, where compulsory wilaya is lawful only in the case of minors. Any competent person, male or female, should be able to decide whom to marry. However, the Hanafi school recognises the right of the wali to ensure a suitable and equal match (kafa’a): though a woman can conclude her marriage when she comes of age, the wali can oppose or dissolve the marriage if it does not meet the kafa’a conditions. Interestingly, the requirement of kafa’a, which largely concerns social class and wealth, is only applied to the man:
"Kafa’a was a one-way street in the sense that the requirement of suitability could only be applied to a groom; the jurists assumed that a woman’s marriage to a man of a lower status would lead to her degradation but her marriage to a man of higher status would raise her to his level".
This also affirms the subordinate status of women within the interpretation of fiqh. It assumes that women hold the status of their husbands. It is also a matter related to class arrangements. Mona Siddiqui suggested in this regard that Kafa’a is about keeping wealth within particular groups in society as women’s inheritance could lead to a change in the social hierarchy and structure.
Family law in Jordan has adopted the Hanafi school’s interpretation. However, in relation to wilaya over women, the law has embraced the Maliki school, which is more restrictive and stipulates that the wali’s concluding of a marriage on behalf of his female ward is a condition for the validity of the marriage. While laws on guardianship for marriage in Jordanian family law do not stipulate any specific age for women for the purposes of guardianship, Article 185, section three of the 2010 Family Law on custodianship gives the wali the right to have general wilaya over a woman under thirty years. Guardianship can be extended beyond thirty years -old if the female is considered untrustworthy. On the other hand, the family law of Jordan adopts the Hanafi school’s principle of Kafa’a. This combination of different Islamic schools of jurisprudence demonstrates how the Jordanian state’s legal and religious institutions can pick and choose from within shari’a law what suits their views.
During my fieldwork in 2011/2012, I interviewed several judges of Shari’a courts in Amman. All of them justified wilaya over women with reference to biological determinism. One of the Shari’a court judges concluded our conversation by stating: “In short, wilaya is God's way of perfecting a woman's mind, by attaching her to that of a man’s, which would also protect her from herself and those who might try to deceive her.”
This statement encapsulates the shared convictions among judges with regard to the wilaya provisions in Jordanian Family Law. The first conviction is that women are less competent than men in terms of mental and physical abilities. The second is that wilaya is a symbolic measure to preserve women’s dignity in Islam; hence, the wali’s role is to ensure that women are protected from deviance. Finally, wilaya is not just about laws that organise people’s lives; it is related to the stability of one’s community. In connection with the third point, another judge stated: “if women are left to their own devices they might take decisions that do not only affect them but might also endanger the social relations of the tribes in Jordan.” Ensuring the harmony of society is of utmost importance and keeping tight control over alliances and the exchange of women in marriage is seen as central to this harmony. This is why “we [judges] need to make sure that women’s choice of marriage is not endangering our society’s values and rules”.
Judges have also exhibited views that were contradictory and endorsed inconsistent rulings at the level of practice between law, tribe and religion. For instance, there were cases where judges of Shari’a courts referred women to seek the support of tribal sheikhs. They did so in cases where women belonged to influential tribes because they did not want to conduct a marriage without the consent of the wali despite the fact that the women in question were over thirty years, with established careers, and their guardians had no valid reasons to object the marriage. When the cases involved women of more minor tribes, judges were less hesitant to conclude the marriages without the consent of the wali. This reveals that the protection of tribal interests is a higher priority for the State than preserving religious values or the rule of law in the country.
This analysis suggests that there is a need to reconsider or establish new feminist approaches that aim to unmask the basic concepts that define women and their subordinate positions. It is also vital to take into account the rationale and motives that are behind the perpetuation of these concepts in relation to the broader interests of the state and its institutions. Both the definition of wilaya over women, and the rationales or convictions of the judges demonstrate that women will not benefit from minor or even more substantial changes to family law, or from a reinterpretation of Shari’a laws, since wilaya is not legalized to preserve religious prescriptions but rather religion is used selectively to construct and reproduce values and characteristics assigned to femininity and masculinity, which, in turn authorize specific modes of control over women that result in their subordination.
Therefore wilaya over women, rather than just being confined to one article in the family law of the Arab region, actually constructs and produces certain types of femininity and masculinity that define women’s positions. Whether this concept flows from a “protective reasoning” and is an enforcement of men’s superiority over women, or a product of patriarchal attitudes that define women’s roles in accordance to assumed biological differences, or the result of traditional fiqh interpretation and its articulations with colonialism and the states’ preservation of national identity through the control of women - all directly or indirectly suggest that wilaya is a key in the production of the imagined or invented femininity.