Wilaya (authority and guardianship, fiqh)

وِلاية

Wilaya, with a kasra, in the language comes from the root wali, nearness; he is near to him, and one who takes up a matter is said to have governed it. With a fatha it means help and love. The guardian (wali) of an orphan, of a slain person, or of a woman is one who takes charge of their affairs. ¹

In the technical sense most jurists use wilaya as carrying out a word over another whether he wills it or not. It covers the supreme imamate, judgeship, the office of hisba (public order), the grievances court and the police, and the adult's management of the affairs of one who is still a minor. The word is also used for a husband's authority to discipline a rebellious wife, a father's to discipline a young son, and a teacher's over his pupils. ²

The Malikis use wilaya for a bond that causes inheritance, in five kinds: wilayat al-Islam, which gives inheritance only when no other kind exists; wilayat al-hilf (alliance); wilayat al-hijra (migration), by which inheritance was given at the start of Islam and then abrogated, as were the alliance; wilayat al-qaraba (kinship); and wilayat al-'itq (manumission), by which inheritance stands. Ibn Rushd explains that the wilaya of Islam is general, by the verse of believers as protectors of one another; the wilaya of alliance was abrogated by the verse of the kin; the wilaya of migration was likewise abrogated; kinship by the verse of shares; and manumission gives inheritance where lineage fails. ²³

God's wilaya over believers means that He takes charge of them with love, guidance and help. Ibn al-Qayyim says it is general for every pious believer and special for one who keeps all God's rights. ³

Related words: deputising (niyaba), which is one person standing in place of another in an act; wilaya is wider than it, so every deputising is a wilaya, but not every wilaya is a deputising. 'Amala, the fee of the collector of charity; the wali is wider than the collector. Qiwama, the custody and care of a matter; the custodian (qayyim) is the manager and administrator of a minor, an insane or a spendthrift, or of an endowment's property. ⁴

Related words. Qiwama is narrower than wilaya and means keeping and preserving. Wasiya (guardianship after death) is the setting of another in one's place after death to look after the estate and the young children, and is narrower too. Wakala is the delegation of a disposal that admits delegation during one's life, and is narrower than wilaya. ⁴⁵

General authority (wilaya 'amma) is power to compel and carry out an act over another without his delegation, in matters of religion and the world, of persons and property, governing the public affairs of life, to secure benefits and avert harms. It is a religious and worldly office, instituted for three things: enjoining good and forbidding wrong, delivering trusts to their owners, and judging among people with justice. ⁵⁶

Its ranks run from the supreme imam down to his deputies and governors. By it armies are equipped, frontiers defended, taxes collected and spent where they belong, judges and governors appointed, the hudud and the discretionary penalties enforced, rebels suppressed, disputes settled, and guardians and custodians appointed and held to account. Ibn Taymiyya says the aim of all authority in Islam is that religion be wholly God's. ⁶

The law makes the authority over people one of the greatest duties of religion, since people's interests are not secured without gathering, and gathering needs a head; hence the saying that when three go on a journey they should appoint one of them as leader. ⁶⁷

The common conditions of general authority. Islam is required by agreement, on the verses of Surat al-Nisa (verses 144 and 59, cited by number). Puberty is required by agreement, on the saying that the pen is lifted from three. Sanity is required without dispute. Freedom is required, so a slave does not hold it. Male sex is required by the majority, on the verse that men are guardians over women (Surat al-Nisa, verse 34) and the saying that a people who give their affairs to a woman will not prosper. Justice is required by the majority, and knowledge of the rulings by the majority; al-Samarqandi requires knowledge of the principles of religion and independent judgement in its branches, and reports that a scholar of his time held that this would mean that no imam could hold office, so that a man can rely on others for what he lacks. ⁷⁸⁹

Bodily soundness: the holder must hear, see and speak, since a defect in these senses prevents full action; al-Juwayni says that loss of sight, hearing or speech prevents rising to urgent matters. ⁹

Opinion and capacity. These differ with each office: what is needed in the supreme imamate (political, military and intellectual ability, firmness, compassion and shrewdness) is not required of lesser offices. The Prophet told Abu Dharr: 'you are weak, and it is a trust', and said: 'when trust is lost, await the hour'. ⁹¹⁰

Choosing the best when the ideal is absent. When all the conditions cannot be met, the appointment of holders is not suspended; the most suitable is chosen, since necessity permits what is forbidden, and keeping some interests is better than losing all. Al-'Izz ibn 'Abd al-Salam says that if justice were absent from all people, the interests of judges, caliphs and governors could not be suspended, and the best of the corrupt would be chosen. Necessity also requires striving to reform matters until the conditions are completed. ¹⁰¹¹

The duties of the holder of general authority vary with the office. He must keep to the law of Islam in word, deed and conduct, since he is an example; and he must discharge trusts, as the verse of Surat al-Nisa (verse 58) commands. ¹¹

The Prophet said: 'No servant whom God appoints over a flock dies on the day he dies while deceiving them without God forbidding him Paradise.' He also said: 'Whoever appoints a man from a group while in it is one more pleasing to God has betrayed God and His Messenger.' So whoever holds any part of the affairs of Muslims must appoint in each place the most suitable and most capable he can find. Ibn Taymiyya says that turning from the most entitled to another for kinship, clientage, friendship, shared town or school, race, bribery or grudge is betrayal of God, His Messenger and the believers. He holds that the discharge of trust rests on three things: fear of God, not selling His signs for a small price, and not fearing people. ¹²¹³

Justice is God's balance on earth and the support of religion and the world. The jurists say that when authority is accompanied by justice it is among the best acts of obedience; a just imam, ruler or judge has a greater reward than all others, and unjust rulers bear the greatest burden. The sum of just governance is the delivery of trusts to their owners and judging with justice. ¹³¹⁴

Enjoining good and forbidding wrong is the purpose of all authority. It is an obligation on each capable person, and becomes an individual obligation on the capable one when no one else undertakes it; those in power bear more of it. Offices differ: some are like a trusted witness, required to be truthful, and others like a trusted commander, required to be just. ¹³¹⁴

Consulting people of knowledge, judgement and experience is obligatory for the holder of general authority, on the verse that he should consult them in the matter (Surat al-Shura, verse 38, cited by number). Ibn Khuwaz Mindad said that rulers must consult the scholars where they do not know or where religious matters are unclear, the commanders in war, the notables on public interests, and the scribes and governors on the good of the lands. ¹⁴¹⁵

Caring for the needs of the community is an obligation in every office, on the saying that whoever God gives authority over Muslims and shuts himself off from their needs, poverty and wants, God shuts Himself off from his needs. Al-Qarafi says that authority is for securing pure or preponderant benefit and averting pure or preponderant harm. ¹⁵

The rights of the holder of authority include obedience in what is good, agreed upon, on the verse 'obey those in authority among you' and the saying 'hearing and obedience are due to the Muslim in what he likes and dislikes, unless he is ordered to sin'. Rebellion against a just ruler is agreed to be forbidden; rebellion against an unjust one is disputed. Advising him is obligatory, on the saying 'religion is sincere counsel... to the leaders of the Muslims and their common folk'; it should be gentle and private, not public censure. ¹⁵¹⁶

The holder has a right to a stipend from the public treasury sufficient for him and his dependants, by analogy with the zakat collector, since he devotes himself to the interests of Muslims, and so that he is not driven to bribery or unlawful gain. ¹⁶¹⁷

The kinds of general authority differ with regions, eras and customs, and the jurists count more than twenty. They include the supreme imamate, the great leadership in guarding religion and governing the world as deputy of the Prophet ﷺ, called 'great' to distinguish it from leading the prayer; the vizierate, a legal authority the imam gives to a trusted man, in two kinds, delegated and executive; and the judgeship, whose reality is declaring the legal ruling with binding force and settling disputes, with partial kinds such as a supervisor of marriage contracts only or of orphans' affairs only. ¹⁷¹⁸

The mazalim (grievances) authority. Al-Mawardi says it is the leading of wrongdoers to fairness through awe, and the restraint of disputants from denying one another's rights through dignity. Its holder must be of high rank, obeyed, of great presence, clearly chaste, little greedy and very pious. Those who already hold general powers, such as ministers and amirs, need no separate appointment; others need one. ¹⁹

The amirate (imara) has two kinds. The chosen amirate (istikfa') is made by the imam, general over a town or region or specific to the army's command, the protection of the realm and the defence of its honour, without judgement, taxes or alms. The seized amirate (istila') is made by the imam out of necessity, when a commander has taken a land by force and the caliph gives him its command. ¹⁹²⁰

The police (shurta) are the sultan's aides. Ibn al-Amin al-Qurtubi gives them two tasks: helping the judges in imprisonment and release, and investigating crimes and carrying out the hudud. Ibn Khaldun notes the title varies by land (hakim, sahib al-madina, wali). Taj al-Din al-Subki says the police may investigate public wrongs such as wine and hashish and stop their pretext, and cover those whom God has covered, but may not spy on people or raid their houses on rumour; they should send a trusted man in secret to forbid the wrong only as far as God has forbidden it. ²⁰²¹

Ibn Taymiyya calls this the 'lesser war' (wilayat al-harb al-sughra), to distinguish it from the 'greater war', which he describes as the deputising of the sultanate. Its purpose is to prevent corruption on earth and suppress the wicked and aggressive. He says that in his time in the Levant and Egypt it covered the hudud involving bodily harm and judgement in disputes, while in the Maghrib the governor only carries out what the judge orders. ²¹

The hisba is enjoining good when it is abandoned and forbidding evil when it is committed. It is a religious office like prayer, giving fatwas, judgeship and jihad. It is of two kinds: an original office from the lawgiver, binding on everyone asked, and a delegated one, given by the caliph or amir, held by the muhtasib. ²¹²²

The amirate of jihad is only against polytheists, and is of two kinds: one limited to army policy and the conduct of war, and one that includes the division of booty and the making of treaties. If it is made for a single campaign, the amir may not undertake another; if it is general, he must renew campaigns year by year. ²²

Authority over wars for the public good is against non-polytheists: apostates, rebels and highwaymen. The office of collecting charity is limited to zakat funds; its holder must know the rules, the amounts, the kinds of property and the payers, and be gentle and vigilant. ²²²³

Special authority (wilaya khassa) has three forms: the compulsory deputising over a minor's person and property (guardianship over the person and over property), the authority of the administrator of an endowment over its property, and the authority the law gives the kin of a slain person to exact retaliation or to pardon it for blood-money, on the verses and sayings 'whoever is slain wrongly, We have given his heir authority' and 'the kin of the slain have the choice of two things'. The first is the common meaning in the jurists' usage. ²³

Special authority passes to the general authority when its holders are absent, on the saying 'the sultan is the guardian of him who has no guardian'; the sultan exercises it himself or through his deputies, such as governors and judges, since the deputies stand in his place. Special authority prevails over general authority, since it is stronger. Thus the endowment administrator prevails over the judge, and the guardian of an orphan prevails over the judge; the judge may not dispose of an orphan's property while the father's executor exists, nor marry an orphan except when there is no guardian or the guardian refuses. The holder of special authority may pardon retaliation free of charge, and the imam may not. If the judge leases an endowed shop to one man and the administrator leases it to another, the administrator's lease stands. The general authority nonetheless supervises all, and may audit the executors, supervisors and administrators, and remove the dishonest among them, even if the donor or founder stipulated against his interference. ²³²⁴²⁵

Hanafi exceptions: the administrator may not appoint officers for the endowed purposes unless the founder stipulated it, but the judge may; the judge may lend an orphan's property without the father or executor. Ibn al-Qasim of the Malikis says that if the sultan marries an adult woman while her guardian is present, the marriage stands and is not annulled. ²⁵

Special authority over property is of two kinds: the authority over one's own property (qasira, proper to any fully capable person) and authority over another's property (muta'addiya), which is either original, given by the lawgiver (the father's or grandfather's authority over a minor's property), or deputising, such as the executor or agent. It is established over those under restraint: the minor, the insane, the imbecile, the spendthrift and the inattentive, and lasts while the cause remains. ²⁵²⁶

The minor is one who has not reached puberty, male or female; he is discerning or not discerning. The insane is one whose reason is gone so that his words and acts do not go right, and it is permanent or intermittent; his acts while insane are void, and while sane are valid. The imbecile has little understanding and disordered speech but does not strike or curse; he may be like a non-discerning or a discerning minor. The spendthrift squanders his property against reason or the law, from a levity of joy or anger. The Shafi'is, Malikis, Hanbalis and the two companions of Abu Hanifa allow him to be placed under restraint, while Abu Hanifa does not. ²⁶

The prodigal and the inattentive (dhu al-ghafla), who is cheated for his simplicity, are treated like the spendthrift in restraint. ²⁷

Who holds authority over the property of those under restraint? The Hanafis give the order: the father, his executor, the executor's executor, the grandfather, his executor, the executor's executor, the judge, and then the judge's appointee; the order follows compassion, which is greatest in the father. The mother, the brother and the uncle have no authority over a minor's property, since a brother's or uncle's compassion is deficient and women's judgement is weak. ²⁷²⁸ The Malikis: the father, his executor, the executor's executor, then the judge or his executor. The Shafi'is: the father, then the grandfather, then the executor of the later of them, then the judge or his trustee; the mother does not act in the sounder view, though the opposite view lets her act. The Hanbalis: the father, his executor, then the judge, then his trustee in his absence; neither the grandfather nor the mother has authority. ²⁸

What the guardian may do. He may act only with care, precaution, and in what benefits the ward, on the saying 'no harm and no reciprocal harm'. He may not make a gift without return, a bequest, a charity, a manumission, or give an undue favour in an exchange, and he must compensate what he gave away. A gift for a return is, by Abu Hanifa and Abu Yusuf, not valid; by Muhammad and the Hanbalis, valid. ²⁸²⁹

He may trade with the ward's property, give it in partnership for a fixed share of profit, sell it on credit where useful, deposit it with a trusted person, buy real estate for it at the value or less, sell and lease his property at its value or better, and appoint another for all of this. ²⁹

Lending the ward's money. The Hanafis and Malikis forbid it, since a loan removes ownership without an immediate return, unlike the judge who lends to preserve the debt. The Shafis allow it where he fears plunder, fire or drowning, to a trusted solvent person. The Hanbalis allow it for a reason such as travel, and prefer a surety or pledge. ²⁹³⁰

He may claim the ward's rights, prove them, make the opponent swear, and compromise on a part of a debt where there is evidence, and collect part of what is due to the ward where there is none. ³⁰

Buying or selling the ward's property to oneself. The Malikis allow the father to buy his minor son's property for himself and sell his own to the son if it benefits the son; the Shafis allow it only to the father and grandfather; the Hanbalis and Zufar forbid it except for the father; the Hanafis allow the father to buy at the value or the usual range, and allow the executor of the father to buy for himself where it is clearly better; Muhammad forbids it. ³⁰³¹

The guardian eating from the ward's property. The Hanafis allow the executor a customary wage for his work if he is in need, by istihsan; some forbid it. The Malikis forbid the rich guardian and allow the poor one his sufficiency in what is customary, on the verse 'whoever is poor, let him eat in what is customary'. The Shafis give the poor guardian the lesser of wage and maintenance. The Hanbalis allow the lesser of the customary wage and his sufficiency, except for the judge and his trustee. Al-Jassas forbids it altogether. ³¹³²

Must the poor guardian repay what he ate when he becomes rich? The majority say no, since it is a return for his work. Abu al-'Aliya, 'Ubayda al-Salmani and the Shafi'i view opposite the sounder one say he must pay it. ³²

The guardian must maintain the ward and his dependants from the ward's property, in what is customary, without extravagance or meanness. ³²

Developing an orphan's property. Three views. The first, the majority's: the guardian may trade with it and develop it, since that is better for the orphan, but he may not trade with it for himself; Malik says 'no harm in trade with orphans' property where the guardian is trusted', and 'Umar said 'trade with the property of orphans, so that charity does not consume it'. The second, the sounder Shafi'i view: it is obligatory to develop it to the extent of the maintenance and zakat, where possible. The third, of al-Jassas and some Shafis and Ibn Taymiyya: it is recommended, not obligatory, on the verse 'say: to set them right is good'; Ibn Taymiyya says it is recommended. ³²³³³⁴

Guardianship over the person is authority over the ward's personal affairs: marriage, teaching, medical care and employment. Its causes are three: minority, insanity (and imbecility, which follows it), and femaleness. ³⁴

Guardianship over the person, as the jurists use it, is authority over a minor's or another incapable person's personal affairs, such as marriage, teaching, medical care and employment. Its causes are three: minority, insanity (with imbecility, which follows it), and femaleness. ³⁴

Guardianship of upbringing and discipline. It rests on the responsibility of parents for their children's worldly and eternal affairs, on the verse 'save yourselves and your families from a fire' and the saying 'each of you is a shepherd and each is responsible for his flock'. Al-Nawawi says the father must teach his son what he needs of religious duties, a duty on the father and every guardian before puberty. Al-Ghazali says a child is a trust with his parents and his heart accepts any impression. The saying is: 'Command your children to pray at seven years old, strike them for it at ten, and separate them in their beds.' ³⁵³⁶

The majority give the authority of discipline to the father, the mother, the grandfather, the executor and the custodian appointed by the judge: they command the child to do the acts of obedience and forbid him the forbidden, and discipline him first by speech, then warning, then rebuke, then beating; the lighter is not passed over for the heavier while the lighter achieves the purpose. Beating must be likely to bring the benefit, must not be severe or painful, and must avoid the face and the lethal parts. The Hanafis confine it to the hand and not beyond three strokes. ³⁶³⁷

Among the duties of guardianship over minors are their health and their care, and their training in whatever knowledge or crafts they are fit for, paid from their property, and the letting of a discerning minor's labour within what is customary, according to the majority. ³⁷

Guardianship in marriage. The father has the authority to marry his minor son and daughter, by agreement of the four schools; the others differ. The Hanafis allow the grandfather and the brother to marry them, with the right to choose on reaching puberty; the Hanbalis deny it to anyone but the father. ³⁸

An insane person has a guardian who manages his affairs, feeds him, treats him and restrains him where his harm is feared. He may be married if it serves his interest; if he has lucid intervals he may not be married without his consent. ³⁸³⁹

Femaleness is a cause of guardianship over the person and is confined to two things: a woman's marriage, and the discipline of a wife in rebellion. Guardianship in marriage is either compulsion (ijbar) or choice (ikhtiyar). ³⁹

The cause of compulsion: the Malikis, Shafi'is and, in the sounder Hanbali view, hold it is virginity, so the guardian may compel a virgin adult sane woman. The Hanafis hold that the cause is minority, so he may not compel an adult sane woman; Ibn Taymiyya and Ibn al-Qayyim agree. ³⁹

A woman marrying herself. The Shafis, Malikis and Hanbalis hold that a marriage is not valid without a guardian, and a woman may not marry herself or delegate a non-guardian to marry her. Abu Hanifa does not require a guardian for a free adult sane woman, who may conclude her own marriage or appoint whom she wishes. A view reported from Ibn Sirin, al-Qasim ibn Muhammad, al-Hasan ibn Salih and Abu Yusuf is that it is not valid without the guardian's permission, and if she does it, it stands on his consent. ³⁹⁴⁰

Obstructing (adl): the guardian's refusal to marry a woman to a suitable man when she asks and he wants her; the effect is the transfer of the guardianship to another. ⁴⁰

The husband's disciplinary authority. The jurists hold that the marriage contract carries the husband's authority to discipline his wife if she disobeys and is rebellious, on the verse 'those from whom you fear rebellion, admonish them, leave them in the beds, and strike them'. He first admonishes her gently, then leaves her in the bed, then strikes her lightly as far as it corrects her. ⁴⁰⁴¹

The authority of the endowment's administrator is a special authority that requires the execution of words over another. It is a right established by law over every endowed thing, which needs a hand to keep it, maintain it, let it, collect its yield and spend it on its purpose by the founder's terms. It is original, for the founder, the beneficiary or the judge, or derivative, by stipulation, delegation or appointment. Only a trustworthy and capable person is appointed. ⁴¹

The authority of God. Ibn al-Qayyim says it is general, the authority of every pious believer, according to his faith and piety (cited: 'God is the protector of the believers'; 'God is the protector of those who believe; He brings them from darkness to light'); and special, the performance of all God's rights, preferring Him over everything else. Ibn Taymiyya says that a believer who wrongs himself has of God's authority in proportion to his faith and piety. ⁴¹⁴²

Al-Shawkani says that the friends of God are sincere believers, who have drawn near to God by obedience. Al-Ghanimi says the wali in the passive sense is one whom God keeps and does not leave to himself, and in the active sense one who performs worship and obedience. Their being free of slips is not infallibility, which is for prophets alone, but God preserves them from persisting in error. ⁴²

The difference between the friend of God (wali) and the prophet. Prophets are infallible by necessity; friends of God are not, and may commit sins, but a friend of God is kept from persisting in them. One must believe all that prophets report and obey what they command; the words of a friend of God are weighed against the Book and the Sunna. Prophets receive revelation; the friend follows the prophet, and one who claims prophecy is an enemy of God. Prophecy ended with our Prophet; friendship lasts until the Hour. Whoever reviles a prophet is an unbeliever; whoever reviles a friend is not, unless he contradicts a root of faith. Muslims agree that prophets are better than friends who are not prophets, and Ibn Taymiyya says the best friends of God are His prophets, the best of them the messengers of firm resolve, and the best of these our Prophet. ⁴³⁴⁴

The criterion distinguishing the friends of the Merciful from the friends of the devil is not marvels, since these may happen at the hands of enemies. It is the qualities, acts and states that the Book and the Sunna describe: whoever follows them has marvels that are of the Merciful; whoever does not has states that are of the devil. Ibn al-Qayyim's test is what the servant does in word, deed and state, examined in his prayer, love of the Sunna and its people, and his call to God and His Messenger. ⁴⁴⁴⁵⁴⁶

Karama (a grace) is, in the definition of Ibn 'Abidin, the appearance of a marvel contrary to custom at the hands of a servant of evident righteousness who follows a prophet, with sound belief and good works, not accompanied by a claim of prophecy. Sunni scholars hold it lawful and actual; the Mu'tazilis deny it. ⁴⁶⁴⁷

The difference between karama and miracle (mu'jiza). A miracle is accompanied by a challenge, and the prophet must show it, since people must know his truth; a karama is not accompanied by a challenge and the friend should hide it. The proof of a miracle is certain, and of a karama probable; no one knows for certain that the one who has it is a friend of God. A miracle proves the prophet's infallibility and the duty to follow him; a karama proves neither. Some jurists hold that a karama cannot reach a miracle in kind or greatness; others hold that whatever may be a prophet's miracle may be a friend's karama, but that a miracle is accompanied by a claim of prophecy. ⁴⁷⁴⁸

Marvels before the mission are called irhas (foundations), not miracles; a friend's karama is also a miracle of the prophet, since the friend is of his community and is a friend only if he believes and obeys the messenger. ⁴⁸⁴⁹

A marvel that happens at the hands of an evident sinner and agrees with his claim is called istidraj (leading on); at the hands of a false claimant to prophecy it is called humiliation (ihana). Ibn Taymiyya says that the Antichrist's marvels prove no friendship or Islam; one must stop at God's command and prohibition. ⁴⁹