Issue 4, Second Position: Examination of the Condition of Benefit (Maṣlaḥah)
Session Six
Issue 4 – Second Position: Examination of the Condition of Benefit (Maṣlaḥah) – Arguments for the Condition of Benefit – First Argument – Examination of the First Argument – First Objection – Response – Second Objection – Response
September 27, 2025
Summary of the Previous Session
In the fourth issue, two matters were raised: one, the conditioning of the guardianship of the father and paternal grandfather and the validity of the marriage of the daughter by the father and paternal grandfather upon the absence of corruption (mafsadah); the other, its conditioning upon benefit (maṣlaḥah). We stated that these two matters are examined in two positions; the first position has concluded. The conclusion of the discussion in the first position was that the guardianship of the father is conditioned upon the absence of corruption; arguments indicate this conditioning. These arguments were stated, and some of them were accepted while others were not.
Second Position: Examination of the Condition of Benefit
The second position concerns the condition of benefit—that is, whether the guardianship of the father and paternal grandfather in the matter of the daughter’s marriage is conditioned upon the observance of benefit by the father and paternal grandfather, or whether no such condition exists. It is evident that the authority of benefit is at a higher stage than the absence of corruption, because it is possible for a marriage to involve no corruption while also containing no benefit—neither harm nor advantage. A contract can, in addition to being free of corruption, also contain benefit. Here the discussion concerns the authority of benefit—whether the guardianship of the father is conditioned upon benefit or not. The Imam (may God’s mercy be upon him), in the text of Taḥrīr, has exercised obligatory precaution (iḥtiyāṭ wujūbī) and stated: “Rather, it is more cautious to observe benefit.” The late Sayyid, in the fifth issue of al-ʿUrwah, in the chapter concerning the guardians of the contract, has the same expression: “Rather, it is more cautious to observe benefit.” The annotators of al-ʿUrwah generally have no annotation here either. Therefore, this is a matter on which there is, as it were, agreement.
Arguments for the Condition of Benefit
We must examine what the argument for this matter is; on what basis have they held to the authority of benefit, even if by way of obligatory precaution? The meaning of obligatory precaution is that the father or paternal grandfather, in marrying off the daughter or granddaughter to another, must not only ensure that the contract involves no corruption, but must also ensure that it possesses benefit—such that, if there is no benefit, the contract is not effective at all. In other words, the guardianship of the father lapses in the case of non-observance of benefit; that is, if he wishes to marry this daughter to another, this right is established for him only if he observes benefit. We must determine what the argument for the authority of this condition is. Primarily, two arguments have been mentioned.
First Argument
The first argument is that benefit is authoritative for the dealings of the guardian with respect to the property of the ward; the well-known position among the early jurists (mutaqaddimīn) is that, for the dealings of the father or paternal grandfather in the property of the child to be effective, benefit must necessarily be observed therein. That is, if there is no benefit, those dealings are not effective and are void; in other words, the guardianship lapses. The majority among both the early and later jurists have held this condition to be authoritative with respect to guardianship over property; indeed, in some statements, such as those of ʿAllāmah [al-Ḥillī] in the book on interdiction (al-Ḥajr) in Tadhkirah, a claim has been made of the absence of disagreement among Muslims [on this point]. That is, they have stated that the guardianship of the father over the child’s property and his dealings therein is conditioned upon his observing benefit; all Muslims and all Islamic schools have stated this. Then, from the authority of benefit in guardianship over property, they have extended this to marriage, stating that this is likewise necessary in marriage. Just as this condition is authoritative with respect to property, so too, in marrying off and giving their daughter in marriage to a man, they must observe benefit. Now the question is: what is the argument for the authority of benefit in guardianship over property? On what basis has the condition of benefit been established there? We must examine that argument to see, first, whether it establishes this condition in financial dealings and guardianship over property or not; then we must see whether we can make use of that argument to hold that this matter is likewise authoritative with respect to marriage. The primary argument advanced for the authority of benefit in the matter of property is the verse: “And do not approach the property of the orphan except in the most virtuous manner.” This verse has been invoked with respect to property; the approach to the argument from this verse for the conditioning of benefit in the guardianship of the father and paternal grandfather over property is as follows: God Almighty has prohibited any dealing or interference with the property of the orphan; He has explicitly stated, “And do not approach the property of the orphan”—this does not mean, for example, that if an orphan has a piece of land, one should not walk past it; rather, it means one should not undertake any action that would constitute a dealing in that property. “Except in the most virtuous manner”—if you wish to have dealings in that property, that dealing must possess a certain preferability (rujḥān) relative to non-dealing. That is, an action must be undertaken that is to the orphan’s benefit; its occurrence must be preferable to its non-occurrence, otherwise the dealing is not permissible. What confers preferability with respect to the orphan’s property is that the orphan’s benefit be present therein; otherwise, if the presence and absence [of the action] were equal—that is, if it entailed neither harm nor advantage—it would not fall within the exception of this verse. Therefore, this verse indicates the authority of benefit in every type of dealing in the property of the orphan by the father and paternal grandfather. Then it has been said that we make use of this verse to conclude that every type of action concerning the orphan, even marriage, is contingent upon the observance of benefit. In other words, we extend the authority of benefit from guardianship over property to marriage; just as this matter must be observed with respect to property, so too with respect to marriage. This is because common usage (ʿurf) eliminates the specific character of “property” and says that property has no special distinguishing feature in this regard; therefore, marriage is likewise contingent upon the observance of benefit. Indeed, marriage may well be more important than property; that is, if benefit must be observed with respect to dealings in the daughter’s property, then in marriage—which certainly carries greater importance than property—it must be observed all the more so. That is, this marriage must not only be free of corruption but must also possess benefit and advantage; otherwise, “except in the most virtuous manner,” which permits dealing, would not encompass it, and it would remain subject to that same prohibition. This is the approach to the argument from the verse with respect to property, and then its application to the matter of marriage.
Examination of the First Argument
Numerous objections have been raised against reliance on this verse; I shall transmit several objections and examine them in order to determine, first, whether this verse itself establishes this condition with respect to property or not; then, if this condition is established with respect to guardianship over property, whether it can be extended to marriage and held authoritative there as well, or not.
First Objection
The objection is that the verse concerns the orphan; it states: “And do not approach the property of the orphan.” One who has a father is not termed an orphan. Therefore, the verse fundamentally pertains to the dealings of the paternal grandfather and does not encompass the dealings of the father—even with respect to property. As it were, the verse addresses the paternal grandfather (or anyone other than the father who holds guardianship), saying: if an orphan—one who has no father—is under your guardianship, preserve his property; do not deal in his property and do not approach it, except “in the most virtuous manner.” This does not encompass the dealings of the father and the father’s guardianship at all.
Response
This objection does not bear upon the essence of the matter; because it does not bear upon the essence of the argument but only states that it does not encompass the father, and is therefore resolvable. Some jurists have indeed responded to this objection, including the late Āyatullāh Khūʾī, who states: with certainty regarding the absence of distinction between the father and the paternal grandfather, we can complete the argument. The fact that it has been said that no one has differentiated between the father and the paternal grandfather—on the one hand, a claim of agreement among Muslims has been made that everyone has accepted this condition with respect to property, and no one has said that this condition is authoritative with respect to the paternal grandfather but not authoritative with respect to the father—we have certainty regarding the absence of distinction and difference between the father and the paternal grandfather; that is, whoever has accepted the principle of this conditioning has accepted it both with respect to the father and with respect to the paternal grandfather. This is a matter of mutual concession (tasālum); either we must accept it for both, or for neither. If it is prohibited for the paternal grandfather in this respect, it is prohibited for the father as well; if it is permitted for the paternal grandfather, it is permitted for the father as well. Here, the paternal grandfather must observe benefit, and likewise the father. As I have stated, this objection is not of great significance.
Second Objection
The second objection is that, fundamentally, the verse does not indicate or establish the authority of benefit and the necessity of observing benefit in dealing with the property of the ward; rather, it indicates the preferability (rujḥān) of this matter. In other words, the verse is construed as recommendatory (istiḥbāb). When it states, “And do not approach the property of the orphan except in the most virtuous manner,” it means: if you wish to deal in the property of orphans, it is better to take benefit into consideration; otherwise, it suffices that there be no corruption—it suffices merely that the orphan suffer no harm; it is not necessary that there be benefit therein. This is because, if we were to derive the necessity of observing benefit from this argument and verse, it would entail an untenable consequence (tālī fāsid). Pay close attention to why this is construed as recommendatory and preferable: it is said that if the observance of benefit were necessary, then in a case where we are faced with two possible dealings, one of which carries greater benefit than the other, the guardian would necessarily have to choose the one carrying greater benefit. If the observance of benefit were necessary, the guardian could not say: “It is true that this carries greater benefit, but I shall choose this lesser benefit instead”; he could not do this. In the presence of a stronger benefit, he could not opt for a lesser benefit; this is something to which no one has held. That is, no one has ruled on the necessity of observing a superior benefit over an inferior one; they have said only that there must be benefit—now, if one is higher and another lower, there is no problem in choosing the lower benefit as well. Therefore, this verse, even with respect to property, does not indicate the necessity of observing benefit, let alone with respect to marriage; rather, it conveys only preferability. But our discussion is not at all about preferability; it is about necessity.
Response
This objection too is answerable, because the context of the verse and the preceding verse preclude its construal as preferability and recommendation. The preceding verse is: “Say: Come, I will recite what your Lord has forbidden you: that you associate nothing with Him.” The preceding verse speaks explicitly of forbidden matters (muḥarramāt) and things that are unlawful—the matter of killing a soul, approaching indecencies, and associating partners with God; it places associating partners with God (shirk) alongside those forbidden matters, and in another verse, in Sūrat al-Isrāʾ, it likewise mentions the killing of children and adultery. When the verse speaks of divine prohibitions and then continues, “And do not approach the property of the orphan except in the most virtuous manner,” we cannot construe this verse as recommendatory; that is, the exit from the prohibition has only one condition, namely that benefit be taken into consideration—otherwise it remains subject to the prohibition, not merely a non-preferable permission. Therefore, the second objection too is resolved.
Discussion for the Next Session
One further objection remains, which is more significant than these two previous objections; God willing, we shall state and examine this objection in the next session.