Issue 4, Second Position: Examination of the Condition of Benefit

Session Eight

Issue 4 – Second Position: Examination of the Condition of Benefit – Arguments for the Condition of Benefit – Second Argument and Its Examination – Third Argument and Its Examination – Fourth Argument and Its Examination – Conclusion of the Discussion on the Second Position

September 29, 2025

Summary of the Previous Session

The discussion concerned the arguments for the conditioning of benefit (maṣlaḥah) in the effectiveness of the contract of the paternal grandfather and father on behalf of the daughter; we stated that several arguments have been invoked to establish that the guardianship of the father and paternal grandfather is conditioned upon the observance of benefit—meaning that, if benefit is not observed, the guardianship is fundamentally forfeited. We mentioned the first argument, and it became clear that the first argument is not sufficiently adequate to the purpose.

Second Argument: The Restriction (Inṣirāf) of Unqualified Statements

The second argument proceeds by way of consideration of the unqualified scope of the evidences of marriage; that is, it has nothing to do with the matter of the verse and its indication regarding the conditioning of the financial dealings of the paternal grandfather and father upon benefit. Independent of whether benefit is a condition with respect to financial dealings or not, it seeks to establish the authority of benefit specifically by claiming the restriction of the unqualified statements in the chapter on marriage. The explanation of the matter is as follows: The evidences of marriage that establish the guardianship of the father and paternal grandfather with respect to the daughter are unqualified; that is, according to these evidences, the guardianship of the father is not conditioned upon the observance of benefit. On the basis of these evidences, the marrying-off of the daughter, whether with the observance of benefit or without it, is valid and effective. [The argument holds that] these unqualified statements are restricted to that marrying-off which possesses benefit. Therefore, according to this argument, the unqualified statements in the chapter on marriage, which establish guardianship over the daughter in an unqualified manner, are restricted to a case in which benefit is observed therein. Thus, a claim of restriction specifically to benefit is made.

Examination of the Second Argument

This argument does not, in certain respects, share the difficulties of the first argument, because in the first argument we had to traverse two stages. In the first stage, it was established that the financial dealings of the guardian are conditioned upon benefit; then we extended this from property to marriage—we transferred it from financial transactions to the marriage contract. Hence, one of the objections was that, fundamentally, this condition is not established with respect to property by means of this verse, let alone its being meant to establish this matter in the chapter on marriage. This argument, by necessity, has no need of that first stage; rather, it proceeds directly to the unqualified evidences regarding guardianship over marriage, but states that these unqualified statements are restricted to a case in which benefit is observed therein. The question is: what is the basis for this restriction? On what grounds is the claim of restriction made? Restriction does not occur without a basis; after all, there must be some indicator (qarīnah)—whether a verbal indicator, a contextual one, or, for example, frequency of usage; in any case, restriction requires a cause. What cause here would necessitate this restriction? Hence some, such as the late Āyatullāh Ḥakīm, have stated that the claim of restriction is impermissible. However, it might be said that the restriction is by virtue of the very meaning of guardianship (walāyah) itself; that is, if we analyze the category of guardianship (it makes no difference whether it is guardianship over property or guardianship in marriage), it becomes clear that guardianship is a reality by virtue of which we must say that the guardian must observe the benefit of the ward. Therefore, it might be said that the cause of the restriction is the very meaning of guardianship, which, from the perspective of common usage, cannot be separated from the category of benefit. This is because guardianship means the custodianship of a person or a group who are in need of custodianship, guardianship, and stewardship—because they themselves are unable to carry out the relevant matters, and someone undertakes responsibility for those matters. Naturally, when someone is placed in this position, he must observe the benefit of the ward. Since we shall mention this as an independent argument, we shall defer its examination to when we raise this matter as an argument [in its own right]. Thus, to some extent, in contrast to the late Āyatullāh Ḥakīm, it might be said and is indeed sometimes said that the restriction can arise from this consideration, and that its cause is precisely this reality of guardianship and reflection upon the meaning of guardianship.

Third Argument

The third argument is that, in general, guardianship and custodianship mean the right of dealing in property and in persons; at one time, someone has guardianship over property—that is, he has the right to deal in the property of the ward; at another time, someone, such as the Prophet (peace be upon him), has guardianship over persons (walāyah ʿalā al-anfus), meaning he can deal in all matters pertaining to human beings. Why is someone placed in this position and given guardianship and chosen as a custodian? As I have stated, common usage observes that some people cannot manage their own affairs and cannot deal in their own property, or common usage observes that some people cannot intervene in and decide matters pertaining to themselves; here, guardianship and custodianship is established for someone so that he may carry forward the affairs pertaining to the ward. Now, when the guardian wishes to undertake responsibility for the affairs of such a person, can he do so in whatever manner he wishes, or is this custodianship fundamentally established so that his work proceeds in accordance with benefit—and that, too, the benefit of the ward, not his own benefit? An analysis of this practice of common usage, and of what common usage does, clarifies for us that guardianship is, in essence, a kind of authority and right given to the guardian for the preservation of the interests of the ward. The Lawgiver has also ratified and affirmed this practice and method of rational agents (ʿuqalāʾ). Naturally, one who is placed in this position cannot content himself merely with the absence of corruption but must take benefit into consideration. Therefore, if we analyze the reality of guardianship, the result is the authority of benefit. This is because common usage, on this basis, establishes guardianship for someone who pursues the benefit of the ward. It makes no sense to bring in someone who might create corruption in his affairs. Even the supposition where there is neither benefit nor corruption may well be incompatible with the reality of guardianship.

Question:

Professor: Are you objecting to this argument specifically, or in general? … My question is: is there necessarily an obligation in financial dealings? After all, there are a number of tasks that every person has in his ordinary life and must pursue, whether pertaining to property or otherwise. There is no necessity for us to say that such a task must be a necessary one in order for there to be a guardian for it. Yes, if a task is necessary and no one is available [to perform it], the judge (ḥākim), for instance, undertakes his affairs by way of guardianship on his behalf. But when a number of orphans, minors, the imprudent (safīh), and the insane cannot manage their own affairs (they can neither deal in property nor decide on any matter pertaining to their own lives)—now, some, such as the imprudent, are in this condition only with respect to financial matters, while others are in this condition absolutely. Such a person cannot be left to himself; someone must undertake responsibility for his affairs; this person is either the father, or the paternal grandfather, or the judge, or the upright among the believers (ʿudūl al-muʾminīn). In any case, attention to incapacitated persons and the appointment of a custodian, guardian, and steward for them is a rational and necessary matter, and the Lawgiver has ratified this as well. Now, some of these tasks may be obligatory and necessary, and some merely preferable; for example, he has a house and wishes to exchange it—this carries preferability, or it may even carry no preferability at all. What we wish to determine is whether the mere absence of corruption and benefit suffices, or whether, beyond the absence of corruption, there must be preferability and benefit present in it. Thus, the third argument, in effect, by analyzing the reality and nature of guardianship and the fact that this is a customary matter (amr ʿurfī) derived from the practice of rational agents, concludes that the Lawgiver has likewise ratified it, and therefore the preservation of the interests of the ward is a necessary matter; indeed, the very criterion by which common usage resorts to a person to grant him guardianship is that his interests be preserved. Can we then say that the guardian may undertake an action that contains no benefit yet also entails no corruption? This argument seeks to say: no. Objection raised: Fundamentally, the matter of guardianship is not such that someone becomes the custodian of another for the preservation of his interests; in other words, guardianship is not derived from common usage; the practice of rational agents has no role here. What establishes guardianship for us is statements from the Lawgiver, including “You and your property belong to your father”; in certain traditions, this matter has been stated, addressing a person and saying: you and your property belong to your father—that is, your father has guardianship over you and your property. Is this guardianship conditioned upon benefit, or does it mean: you are nothing and nothing is yours; you and your property belong to your father, and he may do whatever he wishes; this authority is established for the father. Hence, this objection seeks to say that, fundamentally, the foundation of the third argument—which seeks to establish the necessity of observing benefit by way of analyzing the nature of guardianship—is incorrect. Response given: As we have stated, the matter of guardianship has a customary root; in common usage as well, whenever there was an orphan or a minor who had no custodian, a custodian would be appointed for him. Therefore, this has a customary root. Moreover, as for the claim that guardianship is a matter derived from a statement of the Lawgiver, such as “You and your property belong to your father”—if this is meant to establish guardianship without regard to the method of common usage, its necessary consequence would be that the guardian could deal in his child’s property even in the presence of corruption (maʿ al-mafsadah); because “You and your property belong to your father” has the apparent sense that, just as your father can deal with all his own property in whatever manner he wishes, even with corruption, so too he should be able to do whatever he wishes with respect to you and your property, even with corruption—this is something to which no one holds. In the first position, we stated that this [absence of corruption] is authoritative; that the guardian has guardianship and can deal [in the ward’s affairs] only when there is no corruption in that action and dealing. No one has accepted otherwise. This therefore shows that the matter of guardianship has a customary root, on the basis of which the criterion for custodianship and guardianship is the preservation of the benefit of the ward. This is important and carries a key significance. Therefore, it appears that the third argument is an acceptable argument. Benefit itself has a general meaning, encompassing both material and spiritual matters. Now, whether the guardian understands and discerns these matters correctly or not is outside the scope of our discussion. In any case, when he wishes to undertake any action pertaining to the ward, it must be present in his mind that he is acting for the benefit of the ward. A human being, too, as a general rule—barring incidental factors and contingencies—takes interests into consideration in the actions he undertakes; now, he may err in the particular instance as to whether this is truly a benefit or not. But even where an error occurs on his part, it remains present in his own mind that this action is to his benefit.

Fourth Argument: Traditions

The fourth argument consists of certain traditions; the arguer states that certain traditions in the chapter on marriage indicate the authority of benefit.

First Tradition

[The text of the tradition]: “From al-Faḍl ibn ʿAbd al-Malik, from Abū ʿAbd Allāh (peace be upon him), who said: Indeed, when the paternal grandfather marries off the daughter of his son, while her father is alive, and the paternal grandfather is one whose conduct is approved, it is permissible.” According to this tradition, one of the conditions for the permissibility and effectiveness of the paternal grandfather’s marrying-off [of the granddaughter], while the father is alive, is that the paternal grandfather be one whose conduct is approved (marḍiyyan). Being “approved” means possessing benefit—that is, his action being in accordance with the daughter’s benefit; his action being such that the daughter’s benefit is taken into consideration therein. Certain objections have, of course, been raised regarding this tradition, which we have previously addressed on another occasion, in a different position; but the matter of “the paternal grandfather being approved” means that his action be the object of approval. If we do not take “approved” to mean being just (which we said carries no such indication of the meaning of justice), it conveys precisely this meaning of benefit.

Second Tradition

[The text of the tradition]: “From Faḍl ibn ʿAbd al-Malik, from Abū ʿAbd Allāh (peace be upon him), who said: The girl who lives between her two parents is not consulted when her father wishes to marry her to another; he sees more clearly for her [benefit].” The Imam (peace be upon him) said: that daughter who lives in the household of her parents and with them is not consulted when her father wishes to marry her to another. Why? The concluding part of the tradition is significant: “He sees more clearly for her”—he is more experienced and mature; he is better able to discern the daughter’s interests. The very fact that it negates the daughter’s independent choice and autonomy in this matter is for this reason. As I have noted, it is possible for a father to err in a particular instance and, for example, perceive his daughter’s benefit in a [mistaken] course of action. We have, of course, stated that this tradition does not indicate the absence of the daughter’s independent role in the matter of marriage; we have reconciled it with the rest of the traditions. That discussion—whether, in the end, the independent guardianship of the father is established, or whether full discretion is given to the daughter, or whether they must offer their views jointly in the matter of marriage by way of participation—is a separate discussion. What matters chiefly here is that the argument stated for this matter is the father’s seeing more clearly. What does seeing more clearly mean? It means that his view and perspective are more profound, and that he perceives the daughter’s benefit. Therefore, it is not improbable to say that this tradition, too, pertains to the authority of benefit.

Conclusion of the Discussion on the Second Position

It has thus become established from all that we have stated that we have mentioned four arguments; to some extent, among these arguments, some indicate the authority of benefit, and in our view this is necessary, especially in our present time. Therefore, although the Imam (may God’s mercy be upon him) and the late Sayyid have exercised obligatory precaution, we issue a ruling (fatwā) on the obligation of observing benefit. That is, the guardianship of the guardian is contingent and conditioned upon benefit.