Issue 10, Precise Determination of the Subject Matter of the Discussion, Positions, First Position

Session Fifty-Two

Issue 10 – Precise Determination of the Subject Matter of the Discussion – Positions – First Position: The Non-Establishment of Guardianship in an Unqualified Manner – Second Position: The Establishment of Guardianship in an Unqualified Manner – Third Position: Differentiation – 1. First Differentiation – 2. Second Differentiation – Arguments for the Establishment of Guardianship in an Unqualified Manner – First Argument: Verses – Examination of the First Argument

February 2, 2026

Summary of the Previous Session

We stated that, in the discussion of whether the executor has guardianship over the marriage of the minor boy and minor girl or not, several positions exist; some have held to guardianship in an unqualified manner, some have held to the non-establishment of guardianship in an unqualified manner, and some have differentiated. Those, too, who have differentiated are of two groups; therefore, taking these two differentiations into account, altogether four positions exist. Of course, as was indicated in the previous session, the fourth position has no proponent; although some have mentioned it as a position. In any case, the main point is to examine the arguments for these positions. However, before stating the arguments of those who hold to guardianship — whether in an unqualified manner or to some extent (fī al-jumlah) — it would be well to recall the basic presumption (aṣl) on this matter. The basic presumption is the non-establishment of guardianship for the executor; if we hold that the basic presumption is the non-establishment of guardianship for the executor, then, necessarily, we require an argument to depart from this presumption. Therefore, the task of those who hold to guardianship is more difficult than that of those who deny guardianship; because those who hold to guardianship must establish that this case is among the cases that have departed from that presumption. When the presumption is the non-establishment of guardianship, an acceptable and authoritative argument, in opposition to that presumption, must be able to establish the guardianship of the executor; but one who denies the guardianship of the executor, it suffices for him merely to object to the arguments of those who hold to guardianship, even if he provides no argument for the non-establishment of guardianship. Of course, those who hold to the non-establishment of guardianship have also invoked certain arguments. In any case, the primary presumption, with respect to every human being in relation to another human being, on the authority of strong arguments, is the non-establishment of guardianship — ʿadam walāyat aḥad ʿalā aḥad (the non-establishment of the guardianship of anyone over anyone). The guardianship of God is, in its own right, established; those who are authorized by God [are also established] in their own right — this, too, falls, in a certain manner, within the scope of God’s guardianship, because they are authorized by God. But, apart from God, the Prophet, and the executor [of the Prophet’s will], who certainly have guardianship, with respect to others, we require an argument to remove them from this presumption — for example, with respect to the father and paternal grandfather, this argument exists; with respect to the [Muslim] ruler and the jurist, this argument exists. Although, within the scope of the guardianship of the ruler and the jurist, there is disagreement among the jurists; but, in any case, guardianship is, in a general manner, established for him. But, apart from these instances, anyone who wishes to possess guardianship, in any scope whatsoever, requires an argument; because the primary presumption is the non-establishment of the guardianship of anyone over anyone. With respect to the executor, too, like other persons, the primary presumption is the non-establishment of guardianship, and, to depart from this presumption, we must determine whether sound and sufficient arguments exist or not.

Arguments for the Establishment of Guardianship in an Unqualified Manner

Those who hold to the guardianship of the executor in an unqualified manner have invoked certain verses and traditions, establishing the departure of the executor from the presumption of the non-establishment of guardianship. They have mentioned two verses from the Qurʾān and several traditions. We shall examine these arguments one by one to determine whether they can establish the claim of those who hold to guardianship in an unqualified manner, or not. Of course, apart from the verses and traditions, certain other arguments have also been invoked.

First Argument: Verses

First Verse

One of the verses is verses 180 to 182 of Sūrat al-Baqarah: “It is prescribed for you, when death approaches one of you, if he leaves behind wealth, that he make a bequest for the parents and near relatives in a fair manner, as a duty upon the righteous. But whoever changes it after he has heard it, the sin thereof is only upon those who change it; indeed, God is All-Hearing, All-Knowing. But whoever fears injustice or sin on the part of the testator and so makes peace between them, there is no sin upon him; indeed, God is Forgiving, Merciful.” The approach to the argument from this verse is the invocation of the unqualified scope of the closing part of this verse: “But whoever changes it after he has heard it, the sin thereof is only upon those who change it.” It first recommends the making of a bequest, then emphasizes this, and then states that whoever changes the bequest after having heard it bears the sin thereof; the alteration and changing of a bequest is forbidden. The prohibition of alteration, too, is general — that is, whatever is bequeathed has received ratification. When it states, “But whoever changes it after he has heard it, the sin thereof is only upon those who change it,” this, by its unqualified scope or by its generality, indicates the ratification of the bequest in all its aspects and dimensions, and he has no right to change and alter it. That is, lazima al-ʿamal bi-mā yaqtaḑīhi al-waṣiyyah (it is necessary to act according to what the bequest requires); here it has only made one exception, namely those matters that would result in sin, harm, and deviation from the bequest, [which would result in] harm to the heir — those do not need to be acted upon; otherwise, the rest must be acted upon. Naturally, this unqualified scope encompasses a bequest with respect to marriage as well; this generality, apart from those two or three instances that have been excepted, must be fulfilled. It is evident that marriage is not among the instances of harm and deviation from the bequest; because the supposition is that the executor has married off the minor in accordance with benefit. It is like saying, “Honor the scholars, except the morally corrupt,” or “Free the slave, except the unbelieving one” — naturally, apart from that instance which has been excepted, and whose exclusion from the scope of the generality or unqualified scope is clear, this matter, by its unqualified scope or generality, must be obligatorily fulfilled, and opposition to it is not permissible. Naturally, the matter of the marrying-off of the minor boy and minor girl is also encompassed by this unqualified scope or generality; because it is certainly not among the instances excluded and excepted; there is neither deviation in it, nor harm in it; therefore, it must be fulfilled, and for this very reason we can say that the guardianship of the executor in the matter of marriage is established. This argument has been stated by some, including the late Āyatullāh Khūʾī, in al-Mabānī fī Sharḥ al-ʿUrwah.

Examination of the Argument from the First Verse

Objection

An objection has been raised here regarding the argument from this verse, namely that the opening of the verse certainly refers to financial matters — that is, the bequest is financial. Because it states, “if he leaves behind wealth (khayran), [that he make] a bequest for the parents”; “khayr” (good) in fact relates to property; “in taraka khayran al-waṣiyyah” means “if he leaves behind property”; “khayr” here certainly means property. If, in the opening of the tradition [verse], the bequest pertained to property, this is an obstacle to invoking the unqualified scope, or to the formation of unqualified scope, in the closing of the tradition [verse]; therefore, since the opening of the verse concerns a bequest in financial matters, necessarily, its closing, which refers to the bequest and states, “but whoever changes it” — that is, “whoever changes it” refers to that same bequest — that is, the same financial bequest. Therefore, this bears no relation to the matter of the guardianship of the executor over the marriage of the minor boy and minor girl. In other words, this argument is narrower than the claim; because the claim is the unqualified effectiveness of the bequest, which would encompass marriage as well; but the argument pertains only to a financial bequest — that is, the verse, in fact, wishes to say that it is necessary for everyone, before his death, to make a fair bequest regarding his property for his parents and near relatives, and no one has the right to alter it either. Therefore, by the indicator of the opening, it is as though there is no unqualified scope for the tradition [verse].

Question:

Professor: It is not [unrelated to] financial matters; it has a role in those financial matters as well. But here the bequest pertains to what is left behind (mā taraka), and what is left behind means property; therefore, this does not encompass the supposition under our present discussion.

First Response

Several responses have been given to this objection: One response is that it is true that the bequest, in the opening of the verse, pertains to property — or, in other words, the subject matter (mawḑūʿ) of the verse is a bequest with respect to property. But the subject matter cannot restrict (mukhaṣṣiṣ) the scope of the verse; we have many parallels to this, and it is stated everywhere that the subject matter [of a statement] does not restrict [its general application]. The opening of the tradition [verse] pertains to a bequest in property. But when the discourse turns to the permissibility or impermissibility of altering and changing the bequest, this is stated in a general and unqualified manner, and it is as though this pertains to all bequests. This no longer has any relation to the subject matter, and we cannot regard this as confined to the subject matter.

Question:

Professor: That exception is derived precisely from this: “But whoever fears injustice or sin on the part of the testator and so makes peace between them, there is no sin upon him.” This is, in reality, a continuation of that statement and its exception. … Every kind of deviation, wrongdoing, and harm — all of these are encompassed; it states that, if he sees that this bequest is going to cause a problem, he can alter and rectify it such that it does not result in dispute and conflict.

Second Response

The matter of marriage is among the important matters pertaining to children; after all, the importance of marriage, if not greater than that of property, is certainly no less. Naturally, when he makes a bequest regarding the affairs of his relatives, near relatives, and children, this becomes “a bequest in a fair manner” (waṣiyyah bi-l-maʿrūf). The qualifier “in a fair manner” itself, as it were, indicates a generalization; this indicates that this is not specific to a financial bequest, but rather what is meant is anything that is a fair bequest, and among the instances of a fair bequest is the matter of the marrying-off of the minor boy and minor girl.

Third Response

In certain traditions, this verse has been invoked in such a way that generality is understood from it — that is, in certain instances, the Imams (peace be upon them) have invoked this verse for an unqualified bequest, not specifically for a bequest with respect to property. We shall transmit these traditions later. In any case, when we observe that the verse has, in certain instances, been invoked where it is not at all a financial bequest, it becomes clear that the verse is not confined to property. These three responses were all premised upon one matter, namely that, in general, the verse, even taking its opening into consideration, is not confined to financial matters and property. The first response was also stated by Āyatullāh Khūʾī, but he also gives a further response. Āyatullāh Khūʾī first states the misconception and objection that exists with respect to the unqualified scope of the verse’s wording, and states: “And the misconception that the noble verse, and all the texts transmitted in arguing from it, are confined to a financial bequest, such that there is no argument for the effectiveness of a bequest with respect to the marriage of the insane man or insane woman, is repelled.” This misconception is repelled by what? “By the fact that, although the subject matter of the noble verse is a bequest with respect to property, this does not damage the unqualified scope of the noble verse.” According to one interpretation, this is precisely the same as the first response — namely, that it is true that the subject matter of the verse pertains to a financial bequest, but this does not damage the unqualified scope; because the subject matter does not restrict or qualify [the general statement].

Fourth Response

But we can also mention a further possibility; therefore I have mentioned this as an independent response. Setting aside the opening of the verse, the closing of the verse itself has a firm unqualified scope; we are not concerned at all with the opening of the verse. The closing of the verse is precisely that upon which the approach to the argument has placed emphasis; when it states, “But whoever changes it after he has heard it, the sin thereof is only upon those who change it,” no one has the right to change the bequest, except in a case where he fears that this bequest will lead to sin and wrongdoing, and dispute and conflict among the heirs; then the testator can alter the bequest, and rectify it, in such a way that it does not result in dispute and conflict. Therefore, this verse, as it were, stands in the place of an exception to the effectiveness of the bequest; it is as though it has been stated thus: every bequest is effective, and the testator does not have the right to change it, except where it becomes a cause of disagreement and dispute and harm, and the like. When we have this general or unqualified statement, this generality or unqualified scope encompasses a bequest with respect to marriage as well; this statement, as it were, establishes that every bequest is effective, except in those instances, and this instance is certainly not among those instances; the matter of marriage is certainly not among the excepted instances. Therefore, this statement, in itself, requires the validity and establishment of guardianship. This response, of course, is, in fact, in a certain manner, an explanation of that very approach to the argument; the approach to the argument requires this very meaning.

Question:

Professor: Our point is this: the one who makes the bequest makes it for the parents and near relatives; among the near relatives are the children. Is this bequest, with respect to the affairs of the children — marriage, too, being among their affairs — effective, or not? He states that it is effective… the discussion of the bequest is true; he has not specifically raised the matter of marriage here… when it states that everyone, with respect to near relatives and children, must make a fair bequest, and that they have no right to alter it either, now, in this case, the unqualified scope of his bequest encompasses the matter of marriage as well. Why should it not? You say this has the apparent sense of property only; we say no; the subject matter of it is property, and the subject matter does not restrict [the general application]. Moreover, even if we say that the word “fair” (maʿrūf) encompasses matters other than property, or even encompasses matters more important than property, this is not at all an unreasonable statement. A response has, of course, also been given that this verse, by the indicator of the particle “fa” of consequence (fāʾ al-tafrīʿ) in “fa-man baddal,” is itself an indicator that what is stated subsequently pertains to the opening, which is a financial bequest; however, that is the subject matter, and the subject matter does not restrict [the general application]. Therefore, it appears that the unqualified scope of this verse encompasses the matter of marriage as well.