Reformulating the Concept of Guardianship in Marriage: Between Classical Fiqh Traditions and the Demands of Modern Law

Guardianship (wilayah) in marriage is a fundamental element of Islamic family law. In classical fiqh traditions, the role of the guardian—especially the legal male guardian (wali nasab)—is considered essential for the validity of a woman's marriage contract. However, the evolution of modern legal thought and the growing awareness of women's rights have created a pressing need to revisit and reformulate this concept. While guardianship is traditionally intended to protect women, its rigid implementation often leads to injustice, particularly in cases where the guardian refuses marriage without valid Islamic justification (wali adhal). This study aims to critically examine the classical jurisprudential foundations of guardianship, analyze its application in Indonesia’s positive legal system—particularly within the framework of the Compilation of Islamic Law (KHI)—and offer a reform-oriented approach grounded in the higher objectives of Sharia (maqashid al-shariah). This study, using a normative-qualitative method, finds that classical fatwas on guardianship—especially from the Shafi‘i school—require women to have a male guardian (wali) to validate marriage, regardless of their maturity or consent. While historically intended to protect women, this rule reflects a gender bias that no longer aligns with modern values of justice and legal equality. Reformulating the concept of guardianship is essential to ensure that Islamic family law upholds women’s autonomy and allows judicial authority to act as a guardian when necessary.