Tawkil al-Wali Ghayr al-Mujbir bi-Tazwij Mawliyatihi - Dimn "Athar al-Muallimi
- Author died
- 1386 AH
- Editions
- Dar Alam al-Fawa'id lil-Nashr wa-al-Tawzi'
Tawkil al-Wali Ghayr al-Mujbir bi-Tazwij Mawliyatihi ("Appointing an Agent by a Non-Compelling Guardian to Marry Off His Ward") is a jurisprudential treatise by the Yemeni scholar Abd al-Rahman ibn Yahya al-Muallimi al-Yamani (d. 1386 AH / 1966 CE), examining the validity of a non-compelling marriage guardian appointing an agent prior to receiving the woman's explicit authorization .
Background and Composition
The author composed the treatise following a scholarly exchange concerning whether a non-compelling guardian (al-wali ghayr al-mujbir) may delegate his authority to an agent (tawkil) to execute a marriage contract if that delegation occurs before obtaining the ward's permission . After reviewing standard legal references, al-Muallimi noted a pressing need for a comprehensive and verified investigation of the question .
Based on manuscript evidence written in a small notebook produced in India, the treatise was drafted during al-Muallimi's period in India prior to the year 1371 AH .
Contents and Legal Argument
The treatise opens with an analysis of foundational Shafi'i legal texts, quoting Imam al-Shafi'i from Kitab al-Umm and the statements of classical Shafi'i jurists . Al-Muallimi examines the juristic analogies drawn between a non-compelling guardian and a compelling one (al-wali al-mujbir), as well as comparisons made to an executor (al-wasi) or a legal custodian (al-qayyim), articulating the substantive distinctions between these roles .
The author enumerates ten arguments and justifications advanced by scholars who permitted the non-compelling guardian to appoint an agent before the ward's consent, providing extensive refutations of each . Across these discussions, he addresses the broader rules and conditions governing agency (al-wakalah) and critiques the positions of later jurists, including Ibn Hajar al-Haytami . Al-Muallimi concludes that the reinterpretations of later jurists do not validly restrict or qualify al-Shafi'i's explicit text, affirming that al-Shafi'i's ruling—rendering such an appointment invalid unless the woman explicitly authorizes the guardian to delegate—must be retained on its apparent meaning .
Manuscript and Publication
An autograph manuscript of the treatise, spanning 34 pages in clear handwriting with corrections and marginal additions, is preserved in the Library of the Grand Mosque in Mecca under shelfmark 4688 . The treatise has been edited and published as the eighteenth tract in the multi-volume collection of the author's collected works, Athar al-Muallimi .
Answer updated