Issue 10, Arguments for the Establishment of Guardianship in an Unqualified Manner, First Argument

Session Fifty-Three

Issue 10 – Arguments for the Establishment of Guardianship in an Unqualified Manner – First Argument: Verses – Second Verse and Its Examination – First and Second Objections – The Response of Some of the Eminent Scholars to the First Objection and Its Examination – Second Argument: Traditions – First Tradition: The Authentic Tradition of Muḥammad ibn Muslim

February 7, 2026

Summary of the Previous Session

The discussion concerned the arguments for the guardianship of the executor over the marrying-off of the minor boy and minor girl; we stated that those who hold to guardianship have invoked several arguments. The first argument was verses; the first verse was examined, and the approach to the argument from this verse was stated; an objection raised against it was also examined.

Second Verse

The second verse is: “And they ask you concerning orphans; say: setting their affairs in order (iṣlāḥ) is best for them.” They ask you concerning orphans; say that setting things in order for them is better. The approach to the argument from this verse is that any action that is for the benefit of orphans, in an unqualified manner, is good, permissible, and legitimate. Therefore, if the executor undertakes the marrying-off of the minor boy or minor girl (the supposition, too, being that this action has been undertaken on the basis of benefit), it is valid and legitimate, and “say: setting their affairs in order is best for them” encompasses this, and no prohibition or problem whatsoever appears in it; therefore, the executor’s undertaking of the marrying-off is permissible.

Examination of the Second Verse

This argument is mentioned in Mustamsak of the late Āyatullāh Ḥakīm, and he himself has raised two objections against the argument from this verse.

First Objection

The first objection is that the verse states, “say: setting their affairs in order is best for them,” and this encompasses every act of setting things in order undertaken by anyone whatsoever, and therefore this is not specific to the executor, but rather encompasses all relatives and even strangers. Therefore, if one of the relatives undertakes the marrying-off, and there is benefit in that marrying-off, this presents no problem; or even a stranger, someone who has no relation of kinship to this person, if he undertakes the marrying-off, we would have to hold to its validity. Therefore, the necessary consequence of this argument is that everyone would have the right to marry off the minor orphan; whereas this is certainly not so. That is, such a meaning is not derived from the verse; the verse does not wish to say that anyone can, and has the right to, marry off this minor boy or minor girl, simply because it is an instance of setting things in order, and “setting things in order is best for them.” Therefore, since the necessary consequence of this argument is the extension of the ruling even to one other than the executor, and includes strangers as well, and we have certainty that no such breadth exists for the legitimacy of undertaking marriage, the argument is therefore not correct.

Question:

Professor: This statement and this approach necessarily entail that others, too, would have the right to undertake such an action; whereas we have certainty that others cannot, and common usage does not understand such a thing from this verse. We wish to say that this argument is not correct… such a meaning is not derived from this verse, and it is not in the position of wishing to give such discretion to everyone. This is, in fact, an indicator that this meaning is not derived from the verse; “say: setting their affairs in order is best for them” does not wish to say that anyone can undertake this action. The verse, in fact, wishes to say that, if dealing in property is to be undertaken, it is permissible if it is on the basis of benefit. This is an indicator that what is meant by the verse is this category of actions, not any action whatsoever, and that too on the part of anyone whatsoever. … Because many had imagined that no transaction whatsoever should be undertaken with the property of orphans, on account of the prohibition that had been stated with respect to the property of orphans; “And do not approach the property of the orphan except in the most virtuous manner” — this, too, pertains to those who have discretion and the right to deal in the orphan’s property, not anyone whatsoever.

Second Objection

The verse is not in the position of legislating capacity (qudrah), but rather is in the position of inciting toward that which is within one’s power (maqdūr); the expression of the late Āyatullāh Ḥakīm is: “The discussion here concerns the capacity for this setting-in-order, and the noble verse is not in the position of legislating capacity, but rather is in the position of inciting toward that which is within one’s power.” He states that the verse states that any action that is for the benefit of orphans is good and virtuous, and is reckoned as fine; but is it the case that, if, for example, the executor undertakes the marrying-off of the minor, this too is an instance of “good” (since, if we regard his marrying-off as an instance of “good,” this means that this contract is valid)? The verse is not directed at this aspect. The verse, in fact, alludes to the very matter I have indicated; there had been such a prohibition regarding approaching the property of orphans that people even imagined that even their paternal grandfather had no right to deal in the orphans’ property. The verse, in fact, wishes to say that it is not the case that no action whatsoever should be undertaken with respect to their property; if there is a setting-in-order and a benefit in it, this is very good — like “except in the most virtuous manner,” which is stated in the continuation of that verse. Therefore, the verse wishes to say that, with respect to the property of orphans, setting things in order can be undertaken; but as to what constitutes an instance of this benefit and setting-in-order, it is not at all in the position of stating [this matter] in that respect.

Question:

Professor: Corroboration, too, must be grounded upon some basis; we wish to determine whether the executor has the right to undertake this action or not. Yes, we know, as an external matter, and can say, that marrying-off, too, is one of the instances of good, especially since it is undertaken on the basis of benefit; we can say this as an external matter, but the discussion is whether we can also attribute this to the verse. In light of the indicators that exist in this verse — the opening and closing of the verse — can we say that the verse gives this discretion to the executor, to marry off the minor? Such a matter is not derived from the verse.

Question:

Professor: Even if that, too, were the case, it would be of no use for the argument; even if we say that the verse, in a general manner, encompasses every kind of setting-in-order, and among the instances of setting-in-order is the marrying-off of the minor boy or minor girl premised upon benefit — even if this were so, would others, in the first place, have the right to do such a thing? The problem is precisely what we have stated… if this is the meaning, this would encompass relatives and strangers, which reverts to the first objection. Whereas we say the verse does not convey this meaning. Granting that it does convey this as well, it still does not encompass the marrying-off of the minor boy or minor girl by the executor; because you yourself state that it is not in the position of stating [this matter] with respect to those who are capable of this action; it only wishes to say that this action is good. Granting that we set aside the first objection, even if we wish to accept it, it still does not establish the claim. The conclusion is that the second verse cannot establish this matter.

The Response of Some of the Eminent Scholars to the First Objection

Some of the eminent scholars, in response to the first objection, have raised a certain matter. The first objection was that the verse is broader than the claim — in this sense, that it encompasses even non-executors; it encompasses relatives and strangers, whereas we certainly cannot hold that relatives, too, have this right. Therefore, if we wish to accept the argument, we would have to hold to the legitimacy of the action of relatives and strangers in marrying off the minor boy or minor girl; whereas we cannot hold to this. Therefore, it becomes clear that the verse does not convey such a meaning. Some of the eminent scholars have stated that the addressee in this verse consists only of those who have been appointed for this matter — al-manṣūb li-dhālik (the one appointed for that). Those who have been appointed for this matter — either appointed by the Sacred Law, such as the paternal grandfather, or appointed by rational agents (ʿuqalāʾ) in a manner ratified by the Lawgiver, such as the executor; or anyone who, by the appointment of rational agents, undertakes this matter, such as an agent (wakīl). Therefore, this does not encompass one other than the executor. Therefore, the first objection was that, according to this statement, the verse would encompass one other than the executors as well, and everyone could have the right to marry off this person. He, in response, wishes to say that it does not encompass everyone; his response is: “The addressee in matters such as these is the one appointed for that” — the addressee in matters such as these is one who has been appointed for this matter; therefore it does not have such breadth as to encompass everyone — “either by the Sacred Law, or by rational agents after the Lawgiver’s ratification, as in His statement, the Exalted: ‘And the thief, male or female, cut off [their hands]'” — does this here command all people to cut off the hand of the thief, male or female? Is the addressee of “cut off” everyone, or is what is meant by the addressee in “cut off” one who has been appointed for this matter by God, may He be blessed and exalted? It is true that this, according to its apparent sense, is general here and encompasses everyone, but certainly this is not what is meant; rather, the addressee of “cut off,” in the verse, is one who is in charge of this matter, and this duty has been entrusted to him by the Lawgiver. Or, for example, the verse, “And when you judge between people, that you judge with justice” — when you wish to adjudicate and render judgment among people, judge with justice and fairness. Is the addressee of “that you judge with justice” everyone? That is, does the verse wish to say, “O people, you who wish to render judgment among people, take care to judge with justice”? Certainly, what is meant is not everyone; rather, the addressee of “you judge” and “that you judge” are those to whom this responsibility has, in fact, been entrusted — that is, judges, with their [requisite] conditions. Therefore, he holds that this verse indicates the validity of the testator’s action in the matter of marrying-off — that is, it establishes guardianship for the testator.

Examination of the Response of Some of the Eminent Scholars

It appears that this response cannot resolve that objection; the statement, “And they ask you concerning orphans; say: setting their affairs in order is best for them,” has the apparent sense of stating consideration for orphans in a general manner. The indicator of financial matters and financial dealings that has been mentioned confines this setting-in-order to that very scope of financial matters. Therefore, our stating, as an external matter, that what is meant is specifically those appointed for this matter, is a claim without an argument, and the analogy drawn between our present case and “cut off [their hands]” and that other verse is an analogy with a point of difference (qiyās maʿ al-fāriq); therefore, the second verse may well not be able to establish this claim; although the indication of the first verse was accepted to some extent (fī al-jumlah), this verse, in our view, does not encompass the subject matter under discussion.

Second Argument: Traditions

The second argument is traditions; we have several traditions that have been invoked to establish that the executor can marry off the minor [boy or girl] to another. These traditions fall into two categories: one set of traditions has been transmitted independently, and another set of traditions has come in connection with the verse “him in whose hand is the marriage tie.” We shall present the approach to the argument from these.

First Category

The first category consists of traditions that have been stated independently; there are several traditions, which we shall read. First tradition: the authentic tradition of Muḥammad ibn Muslim: “From Muḥammad ibn Muslim, from Abū ʿAbd Allāh (peace be upon him), who was asked about a man who appointed another man as executor over his children and over property belonging to them, and gave him permission, at the time of making the bequest, to deal in the property, with the profit being shared between him and them. He said: there is no problem in this, on account of the fact that their father had given him permission for this while he was still alive.” Of course, in the chain of transmission of this tradition, according to what appears in Wasāʾil, there is a difference from what is mentioned in the original sources of the tradition. This tradition appears, in addition to al-Kāfī, in Tahdhīb and Man Lā Yaḥḑuruh as well. For example, in the chain of transmission in Wasāʾil, instead of “Yūsuf,” “Yūnus” appears: “From al-Ḥasan ibn ʿAlī ibn Yūnus, from al-Muthannā ibn al-Walīd, from Muḥammad ibn Muslim, from Abū ʿAbd Allāh (peace be upon him)”; but in al-Kāfī, Tahdhīb, and Man Lā Yaḥḑuruh, the word “Yūsuf” appears. This is not of great importance; the main point is the approach to the argument from this tradition.

Discussion for the Next Session

The late Āyatullāh Khūʾī has, in a certain manner, invoked this tradition as an argument, and this has, of course, been subjected to objection; we must determine whether his statement, in this argument, is correct or not. God willing, we shall pursue this matter in the next session.