Islamic Law: Terminology Part 2

As Bernard Weiss has explained, law is a language which structures the world in specific ways, organizing human behavior into categories defined in legal terms.  The terms we use, the language of law, serves to structure the world in a certain way.  The following are important legal terms in Islamic law:

 

Person is tied to the idea of capacity [ahliyya], which is linked to rights and duties.  Some rights arise out of contracts, while others are deemed natural.  But with the concept of rights comes the concept of one who enjoys rights – a person.  Persons are the actors on a legal stage, capable of performing legal acts.  Also bound to capacity are the concepts of responsibility [kulfa] and responsible person [mukalaf].  Legal responsibility must be considered for certain individuals.  Children are generally not held responsible for certain acts.  Thus a person and a responsible person may not be the same thing.  In the Muslim hierarchy of persons, free, sane, Muslim, male, adult people possess the widest range of legal capacity, rights, and obligations.  Each of these criteria forms a limiting or binding category.  In other words, a Muslim’s rights and obligations are higher than those of a non-Muslim, just as a male’s rights and obligations are higher than those of a female, and so on.  Each of these distinctions becomes more or less prevalent in different areas of law, such as contract law or family law.

 

Legal Position of Women Religiously speaking, a female Muslim has fewer rights and duties than a male Muslim.  Legally speaking, her position is also different from that of a man.  This may in fact save her from execution; a male who commits apostasy may be executed; a female should be compelled to return to Islam, hopefully by persuasion, but if not, then through imprisonments and even beatings.  She is further counted as half a man in inheritance, blood-money, and evidence offered in court.  Her husband also has the limited right to take corrective measures against her; a right which she obviously does not share.  However, a woman may not be forced into a marriage.  Jurists generally agree that a man may not force a woman to marry him, just as the girl’s family may not compel her to accept the man they have chosen for her.  She reserves the right of refusal, accept among Shafi’i Muslims, since al-Shafi’i allowed men the right to force virgins to marry.  While most jurists do not favor the notion of forcing a woman to marry, nor do they favor the notion of a woman making her marriage selection on her own.  They generally agree that a woman’s choice of a mate should match the choice made by her guardian.  If they disagree, she can take her case to a qadi, who might still disagree with her and uphold her guardian’s choice of a suitable spouse for her.  The Hanafis are the exception here, recognizing a woman’s right to choose a mate on her own and conclude the marriage contract without a guardian, so long as he is deemed “suitable” for her, a concept we will examine below.

 

Legal position of non-Muslims To some extent, the legal position of non-Muslims has been defined by jurists during periods of conflict with the Muslim world. In certain periods of Muslim history, and in particular regions in which a gazi or raiding mentality prevailed in Muslim thinking, relations to non-Muslims were established, at least in theory, on the basis of ongoing warfare.  Non-Muslims who were not protected by treaty were considered to be in a state of war [harbi].  Indeed, while the realms under Islamic control were the Dar al-Islam, the regions under non-Muslim control were considered to be the Dar al-Harb, the realms of War.  Therefore in dealing with non-Muslims, Muslims had three choices – convert them, subjugate them, or kill them.  Those non-Muslim communities who were subjugated, who accepted the political dominion of the Muslims, become jimmis after one year of occupation, during which time they had the right to vacate the subjugated territories.  Those Muslims who ruled over them had to accept the responsibility of safe-guarding the life and property of the jimmis.  In return, the jimmis were required to follow certain rules, all of which implicitly acknowledged the dominion of Islam, including that they had to:

·         pay the poll-tax [jizya] and the land-tax [kharaj], sometimes under quite humiliating conditions,

·         wear distinctive clothing and live in houses, no larger than Muslim houses, which served to mark them off as jimmi,

·         not ride horses or bear arms,

·         yield the way to Muslims,

·         not openly perform their worship or other culturally distinctive acts deemed inappropriate by Muslims, such as drinking alcohol,

·         not build new places of worship.

 

Legal capacity [ahliyya] is also important in determining legal responsibility; one cannot be held responsible for particular acts for which the law does not find that individual to have legal capacity.  The highest degree of legal capacity resides with the free, sane, adult (i.e., fifteen years of age or older), Muslim male.  The insane and children have the lowest degree of legal capacity.  Religious considerations of character may also influence legal standing, but need not be legally binding.  A qadi should only accept the testimony of witnesses deemed to be of good moral character [‘adl], but if he accepts testimony from a witness of questionable character, his decision based on this testimony is nonetheless valid.

 

Rights [haqq, pl. huquq] and obligations [wajib] also include the notion of liability.  A common generalization is that Islamic law is more concerned with duties and obligations than with rights, but this may simply be because Islamic law has a greater concern for duties than western law does, which tends to be more concerned with rights.  The preoccupation with duties and obligations is most prevalent in Islamic ritual law, which stipulates how one conducts oneself in prayer, during fasting, on hajj, etc.  Perhaps this preoccupation with duties and obligations reflects a greater moralism than does western law.  The difference between Islamic and western law is more a difference in emphasis.  Rights and obligations go hand-in-hand.  A right is often co-terminus with a duty.  In Islam God is the original holder of all rights.  Rights belong to the Creator [Rabb – Lord or Master] while duties belong to the Creature [‘Abd – slave or servant] in the primordial scheme of things.  This is in some ways a simple reflection of God’s ultimate authority as Creator of all things.  The notion of natural rights does not exist in Islam.  Because there is no notion of natural law in Islam, Islamic law is sometimes described as a textual or scriptural law, a law which depends on scripture.  If we have rights, they exist because God has endowed us or blessed us with them.  We are all the property of God; we belong to Him, because He made us.  Perhaps the most basic right of God is to demand obedience from his creation, just as our basic duty is to obey God.  This is a totally theistic or theocentric conception of law.  Positivism is ruled out.  In Islam, the notion that law is what the judge says the law is does not apply.  Law is what God says it is, which comes to be interpreted and explained by the jurists in their books of fiqh.

 

Legal acts [tasarrufat] is a term also associated with acts, transactions, and dispositions.  Tasarruf is something you do, an act.  Legal acts are things you do of a legal nature, acts with a legal significance or legal consequence.  Legal acts can engender rights or duties.  There is a distinction between verbal acts and non-verbal acts, between what one says and what one does.  Verbal acts of a legal nature might include, “I now pronounce you man and wife,” or “I sentence you to death.” Verbal acts, the oral word, has a greater legal nature in Islamic law than in western law.  In Islamic law, the oral word might in fact have greater significance than the written word.  Even with a written contract, it is still important that the text be accompanied by a verbal oath.  Rights and obligations may be engendered through the spoken word.  One difference between verbal and non-verbal acts in Islam is that verbal acts must be intentional, while non-verbal acts may lack intention and still be liable to law.  There are further unilateral and bilateral legal acts.  A bilateral legal act is a contract and the intent of both parties is necessary, while in a unilateral legal act, the intent of a single party is enough. 

 

Contracts in Islamic law have received the greatest deal of attention, and of these, sales contracts have been the most highly elaborated form of contracts in fiqh writings.  Contractualism is especially fundamental in Islamic law.  Contract law has, for example, been more deeply written about than criminal law.  This has to do with the fact that the expansion of Islam created a relatively secure and extensive domain in which trade flourished more than it ever had, requiring a great deal of attention being paid to the needs of the market place and contractual relationships.  This has created a tendency among Islamic jurists to perceive non-commercial relations in contractual terms as well, including family relations.  The important characteristics of a contractual legal act include:

1.      the intent or consent of the parties to enter into a contract,

2.      the legal competency of the parties involved,

3.      that the contract have an object or goods. 

This object or goods must be:

1.      deliverable,

2.      definable or explicit (not vague),

3.      in existence (a contract cannot be based on goods to be produced at a later date), and

4.      the goods must be permissible.

 

Intention and Declaration Intention [niyya] is extremely important in contractual relations and verbal legal acts.  Intention cannot be forced.  It must include willingness.  One way to determine intention is through oral declaration in such expressions as “I accept your terms.” There are impediments to the validity of a declaration, including ignorance (“I didn’t really understand your terms”), fraudulence (“You withheld certain terms from me”), or declaring under duress; that is, being forced to declare against ones will.

            Schacht notes that Islamic law has borrowed the concept of niyya or intention from Muslim religious belief and ritual.  According to God, a prayer has no real validity if performed without sincere and pure intention.  Likewise, the shahada is invalid without intention.  Intention comes into legal effect in the case of declarations.  For explicit declarations [sarih] to have legal effect, no will or intent need be proven.  However, for implied declarations [kinaya] to have legal effect, there must by intent to accompany them.  A very imperfect declaration can be legally valid, so long as it is based on niyya.  However, a very faulty declaration is invalid despite the existence of niyya. 

            Speech is an extremely important aspect of Islamic law.  Silence in contractual agreements is almost never acceptable as a declaration of consent [rida]; the parties must verbally declare their acceptance.  An odd exception is in the case of a marriage proposal; laughter or quiet crying may be interpreted as acceptance on the part of the bride.  Otherwise, a spoken acknowledgment must occur.  Written acceptance of the contract is usually unacceptable in place of spoken acknowledgment, except in the case of a mute person.

 

Duress [ikrah] may also have a legal effect on human acts and agreements.  In civil law the presence of duress may serve to make the agreement voidable, particular if 1) there is threat of death or real danger to a party, and 2) that party believes the threat to be real.  Exceptions include manumission of slaves and conversion to Islam; apparently it is legally sanctioned to pressure an individual to accept Islam, despite the fact that God in the Qur’an opposes this.  In criminal law duress may serve to remove a sanction or make a normally illegal act allowable.  For example, under duress, a Muslim may pretend to apostatize [takiyya] in order to save himself, apostasy usually being considered a terrible crime (punishable with death in the Qur’an).

 

Terms and Conditions There are a number of agreements or acts for which terms are set, including the waiting period of a woman after divorce or the death of her husband [‘idda].  Generally, such terms [ajal] should be certain [ma‘lum].  The concept of condition [shart, pl. shurut] again relates religion to law.  In religious worship, necessary conditions to a valid prayer are ritual purity, covering ones nakedness, facing the Ka’ba, and intent.  Likewise, in law certain conditions make transactions legally valid.  Not all transactions require both terms and conditions.  Hire or lease, for example, often requires a term, but no condition.  The marriage of a slave may require the condition of a master’s consent, but no term.  Invalid terms or conditions, or their absence when required, can invalidate a transaction. 

 

Agency Declaration by proxy, that is, by a messenger [rasul] or agent [wakil], is legally recognized in Islam.  The agent, the one who receives the mandate to act in such a legal fashion, has the rights and duties associated with the mandate.  If a wife is given the mandate to be able to repudiate herself, by law, she cannot be deprived of that mandate.  An unlimited mandate is made possible through the phrase, “act at your discretion.” Otherwise, limitations may be applied to a mandate.  An agent may be employed by a Muslim to avoid religious entanglements.  For instance, a Muslim may mandate a non-Muslim to carry out a transaction to purchase wine on his behalf.  A legal guardian [wali] is at the same time a legal agent endowed with the power to act on behalf of another.

 

Property [mal] is something that may be owned (which is the exclusive right to possess, enjoy, and dispose of a thing) or possessed (which is the actual control or power over a thing).  One may possess yet not own something, as with something one has rented or stolen.  Everything that can be bought or sold is certainly property, although not all property is bought and sold.  For something to be property, it generally has a marketable value.  In Islamic law there are a number of categories defined in pairs to distinguish different kinds of property: measurable and nonmeasurable, fungible (replaceable, e.g., food stuffs) and nonfungible (irreplaceable), tangible (the substance as opposed to the use; e.g., the physical apartment belongs to the owner) and nontangible (usufruct, the use as opposed to the substance; e.g., the use of the apartment belongs to the renter), moveable and nonmoveable (e.g., real estate). 

 

Ownership is the right to possess and dispose of something, of a property.  Ownership is acquired often by transfer of a property from one owner to another, e.g., through purchase or inheritance, or by claiming something which has no owner or which has an unknown owner.

Islamic Law: Terminology Part 1

Shar‘a  or Shari‘at means literally the way or path, that which facilitates or guides ones passage through life to our final destination (related terms: sirat, tariq, Sunna).  Those who don’t follow the path are those who stray from God’s will.  In old pre-Islamic Arabic, shari‘a  referred to a real, physical path leading to a watering hole, a very necessary path indeed.  While it is generally used today in reference to a form of law, it goes far beyond what we generally think of as law.  Rather, it is a moral guide, a guide for ethical conduct which embraces all human activities.   Fyzee describes it as a “doctrine of duties” or code of obligations, since within it our obligations to God take precedence over our rights.  Weiss writes:

The fundamental preoccupation of Muslim thinking about the Shari‘a is with duties that human beings have toward God with sanctions that belong to the world to come, not to this world.  The Shari‘a rules exist for the primary purpose of fostering obedience to God, not obedience to temporal authorities, however much the latter may be enjoined.  (Weiss, 20)

Shari‘a  as Islamic law consists of ahkam, meaning principles, rules, judgments, or even decisions.  Shari‘a  is a sacred law, a religious law, divinely endowed or inspired.  At the same time, however, Islamic law is a rare instance of jurists’ law.

 

Jurists’ law is a law formulated by jurists.  In the case of the Shari‘a , Islamic law is a jurists’ law because, while it stems from divine sources, it is constructed by men who interpret the divine and divinely-inspired sources.  Jurists’ law can produce multiple interpretations, leading to diversity of opinion, each of which is considered valid, which has led to the establishment of different schools of law [madhhab].  Nonetheless, one of their primary duties is to ensure that legal codes or decisions do not contradict the Law of God.  Law is not based on judicial decisions, on decisions derived from court cases, but on what the jurists decide, which are recorded as books of fiqh.  Shari‘a has always existed coterminous with God; Islamic law came into existence through the deliberate efforts of jurists to reform existing human law into a code which they felt best reflected the eternal divine Law of God. 

Muhammadan law came into existence through the working of Muhammadan jurisprudence on the raw material which consisted of the popular and the administrative practice of the late Umaiyad times and was endorsed, modified or rejected by the earliest lawyers.  These lawyers and their successors were guided by a double aim: by the effort to systematize…and by the effort to ‘Islamize’, to impregnate the sphere of law with religious and ethical ideas, to subject it to Islamic norms, and to incorporate it in the body of duties incumbent on every Muslim.  (Fyzee, 30)

 

Ahkam As Weiss has suggested, the attempt to define the term Shari‘a leads to the definition of a further term – ahkam.  In essence, Shari‘a are God’s injunctions concerning correct belief and practice, His guidance concerning the Way to Him through right belief and behavior.  To define this Way requires that we identify, among all the possible acts of man, which are required, which are forbidden, and which may fall into some middle categories.  These categories are the ahkam, which may thus also be referred to as divine categorizations of human actions.  One of these sets of categories concerns that which is valid [sahih] and that which is invalid [batil].  Another set places human acts into five categories known as al-ahkam al-khamsa.  These categories and their contents, which are a blending of law and morality, are often defined in terms of punishments or sanctions:

·         obligatory [fard or wajib] – an act the omission of which is punishable

·         recommended [mandub or mustahabb] – something you should do but cannot be punished for if you don’t do it; the only punishment here may be the loss of piety if one does not comply

·         indifferent [ja’iz or mubah] – that is, something the law is indifferent about, and which may therefore be interpreted as permissible because neutral

·         disapproved [makruh] – something you shouldn’t do but cannot be punished for if you do it

·         forbidden [haram or muharram or mahzur] – an act the commission of which is punishable

 

Punishments fall into two categories: those handed out by the state in this world and those given by God in the world to come.  Yawm ad-Din is the court of God, which refers to the Day of Judgment when all our deeds in this world will be laid bare before us, and God will judge us.  Naturally the judgment of God supersedes all possible judgments and punishments of this world.  This final judgment strongly preoccupies the thinking of Islamic jurists.  In books of Islamic law, many acts are considered punishable because they are forbidden or punishable in the life to come, not in this life, which makes it difficult to define such injunctions as law, since our understanding of law usually implies a sanction applied in this life.  Praying five times a day is obligatory.  However, its omission is not punishable in this life, but in the life to come.

 

Sunna are the sayings and deeds of the Prophet, which, recorded as hadith, provide a second imperative source for Islamic law alongside the Qur’an.

 

Fiqh is the law as considered as a body of diverse opinions, including the possible choices to be made.  Fiqh literally means “understanding”.  Fiqh is the jurists’ understanding of what the law is.  It is the science of jurisprudence through the exercise of intelligence in deciding a point of law.  To formulate law, Muslims do not turn to archives of court cases, but to books written by jurists, which are books of fiqh.  Jurists are able to defend the integrity of the Qur’an in that they are memorizers of the Qur’an [hafiz], as well as experts in hadith [ahl al-hadith].  Their study allows them to come as close to the Shari‘a  or Law of God as possible.  Shari‘a  is the ideal divine form; fiqh is the normative or written form of Islamic law.  Shari‘a is the larger category including all human deeds and beliefs; fiqh is the smaller circle encompassing only those actions of a legal nature.  The jurists or fuqaha are the doctors or scientists of fiqh.  There are four primary sources of fiqh:

·         the Qur’an

·         the Sunna of the Prophet

·         consensus among the learned [ijma‘]

·         analogical deduction [qiyas]

 

‘Ulama’ are the learned scholars of Islam, among whom are the fuqaha or jurists who study and interpret the law of Islam.  Judges often consult with jurists in order to make the right decision in a case.  Not all fuqaha are ‘ulama’, but in African Muslim nations in particular the fuqaha have come to assume the role of the ‘ulama’.  The use of the term fuqaha emphasizes their focus on Islamic law, while an ‘alim studies beyond the law.

 

Madhhab are the Schools of Law.  While a number of schools have been established, only four have persisted in Sunni traditions of law.  Hanbali Muslims are the least populous today, living in Saudi Arabia; Hanafi Muslims are the most populous, living in India, Pakistan, Afghanistan, and Turkey; and Maliki and Shafi‘i falling somewhere in between the two, particularly in areas of Africa and Asia.  The differences between these schools tend to be fairly minute, not very substantial or fundamental.

·         Hanafi The Hanafi school of law, based in Kufa, was named after Imam Abu Hanifa (AD 699-766).  It has become the most widespread, largely thanks to the dominance and spread of the Selçuk and Ottoman empires, which were Hanafi.  Perhaps as much as half of the Sunni population of the world is Hanafi.  It has been characterized as the most liberal of the four schools, and has been noted to include a great deal of qiyas, not, as some have suggested, that Hanifa instigated the use of analogy; he did not.  However, the science of hadith had not fully developed by the time he was writing, which meant a greater necessity for analogical deduction to come to conclusions on matters of law.

·         Maliki The Maliki school of law, based in Madinah, was named after Malik ibn Anas (AD 713-795).  Ijma‘ or consensus played a more important role for this school than did analogy. 

·         Shafi‘i The Shafi‘i school was named after Imam Shafi‘i (AD 767-820), a pupil of Imam Malik and Imam Muhammad, a pupil of Abu Hanifa.  Shafi‘i is considered to have been one of the greatest jurists of Islam and the creator of the Classical Theory of Islamic Jurisprudence.  He is further regarded as the founder of the science of usul and the perfector of ijma‘. 

·         Hanbali The Hanbali school was named after the saintly Imam Ahmad ibn Hanbal (AD 780-855).  Ibn Hanbal was a pupil of Shafi‘i, but argued for a literal rendering of the hadith, which has earned him a common description as a traditionist rather than a jurist. 

 

State The role of the state is to ensure that the law is enforced.  This responsibility alone makes the existence of an Islamic state nearly a necessity in order for Muslims to live according to the Law of God.  Apart from this the state has further duties to ensure the defense and order of the Muslim community.  But in terms of law, it is there to enforce the law and to appoint qadis to hear cases, but it is not responsible for creating law. 

 

Sources

 

Fyzee, Asaf A.A. Outlines of Muhammadan Law.  New York: Oxford University Press, 1999.

Abu Zahra, Muhammad. “Family Law.” Law in the Middle East. Ed. Majid Khadduri and Herbert J.  Liebesny. Richmond: The William Byrd Press, Inc., 1955.

Schacht, Joseph. An Introduction to Islamic Law.  Oxford: At the Clarendon Press, 1964.

Weiss, Bernard. The Spirit of Islamic Law.  Athens: The University of Georgia Press, 1998.

Parents and Children in Islamic Law

Parent-Child Relationship The parent-child relationship also falls under the concern of Islamic law.  This is clearly not a contractual relationship, as with marriage, but emerges through a natural event – the birth of a child.  The law puts the emphasis here clearly on the duties of the parents and the rights of the child, as opposed to the rights of the parents.  And between mother and father, emphasis is placed on paternity, which is always presumptive in a legal marriage, unless otherwise indicated.  The duties of parentage are bound to the legal notion of marriage.  You can be a legal parent only to legitimate offspring; offspring cannot be legal from an illegal or void marriage. 

 

Paternity A parent in Islam is either legitimate or illegitimate.  There is no process of legitimization, of legitimizing an illegitimate individual as a parent.  If a couple divorce, for instance, the child until a certain age generally remains under the care of the mother, since it is recognized that her duty is to care for the child; the father continues to provide maintenance for the child, as this is recognized as his duty.  However, if she remarries, her new husband can in no way be considered the legitimate father of the child, and no process can grant him this legitimacy.  In fact, at this point the child can be taken from the mother and given to its legitimate father.  However, in the case of a child whose father is not initially known, a man can claim paternity to the child, and be recognized as the legitimate father if no conditions are discovered to disprove his claim.  Paternity can therefore be determined by two methods:

1)       Presumptive Paternity A man may be deemed the father simply by virtue of being legally married to the mother, so long as the birth occurs at least 6 months after marriage.

2)       Acknowledged Paternity A man may be deemed father by his formal acknowledgment that he is the father [ikrar].  This becomes necessary when paternity cannot be determined by the first method.  If a child is born within the first 6 months of marriage, the formal acknowledgment of paternity overturns a suspicion of illegitimacy.  If the father remains silent, the accusation of illegitimacy stands.  Unknown paternity means unknown outside of acknowledgment.  If paternity is disproved, a man’s acknowledgment has no effect.  The proven illegitimacy of a child cannot be wiped away with a man’s acknowledgment of paternity; an illegitimate child will always remain illegitimate.  The acknowledgment becomes decisive only if paternity is unproved, not disproved.  Acknowledgment establishes a presumption of paternity in cases where paternity has not been disproved.  Three conditions must exist for acknowledgment to be valid:

·         The paternity of the child is not known or established beyond a doubt.

·         The child has not been proven to be the issue of illicit intercourse [zina].

·         The circumstances are such that they do not rebut the presumption of paternity (e.g.  there is no proof that the would-be father was out of the country during the child’s conception).

 

Guardianship [wilaya] Once parentage has been established, a legal parent-child relationship comes into effect, which incurs then the rights and responsibilities alluded to above.  These rights and responsibilities pertain up until the end of the child’s minority.  A child ceases to be a minor generally around the age of 15, although classical jurists put this at a much earlier age.  Once a child has reached this age, no one has the legal right any longer to function as his or her guardian or to claim custody of the child.  After the father, the next legal guardians in line will be based on the father’s immediate male relations.  However, for anyone to be a legal guardian [wali], they must:

1.       have attained puberty,

2.       be of sound mind, and

3.       be a Muslim.

 

Types of Guardianship There are different types of guardianship related to:

1)       the person of the child, which has to do with custody [hadana, which means nursing] over the child.  This involves exercising guardianship over the child itself.  The mother holds the responsibility for this type of guardianship.  Indeed, she has the right to it in that no one can deprive her of it unless she is somehow disqualified or remarries after the divorce of the parents.  This is her inalienable right.  She has the custody of a son until age 7, and a daughter until puberty, which makes her legally marriageable.  The father nonetheless exercises authority over the mother, and so the final word in matters of custody returns to the father when he so demands.  A woman may be disqualified to exercise custody in certain cases: 1) if she is a non-Muslim, she cannot claim a right to custody; 2) if she marries a man who is not related to the child but who is potentially marriageable to the child; 3) if she has been negligent of the child or unfaithful in her marriage.  If the mother dies or is disqualified, there is a legal order of who can claim custody for the child.  Female relatives of the child come first, such as the mother’s sister.  If there are no female relatives, the male relatives come next, with the father being first in line to claim custody. 

2)       the property of the child, which form of guardianship is dominated by the father.  This covers the same period for male and female children – until puberty.  While the mother is not the legal guardian of property, she may become de facto guardian of the child’s property simply because she looks after that property, but this is only so with the man’s permission.  The primary right to the child’s property remains with the man, although he is limited legally as to what he may do with it.  He is basically recognized as charged with protecting that property, not using it for his own benefit.  So, for example, he may not choose to sell the immovable property of his minor child, unless he is able to obtain twice the value for it, and this doubled income remains the property of the child as well; or if it is necessary to sell it in order to provide for the care of the child; or where the property is falling into decay or costs more to keep up than is feasible for the guardian.  The legal guardian may legally choose to sell the minor’s moveable property, but only in order to provide for the necessities of the child; again, not for the benefit of the guardian.

3)       the marital status of the child, which translates into the guardianship of compulsion or the so-called child-marriage.  This is guardianship by the father or some other male relative.  The father has the right to arrange a contractual marriage for his child.  Such a marriage cannot be consummated until after puberty, no matter how young the child was when contracted.  And due to the option of puberty, a female child, upon reaching puberty, may ask that the marriage contracted by her father be revoked.