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- Title
STARATELJSTVO NAD ŽENOM U RIMSKOM I ŠERIJATSKOM PRAVU.
- Authors
Memišević, Ehlimana
- Abstract
This paper examines the issue of guardianship over women in the Roman and Shariah law. Using a comparative review, we will attempt to establish the grounds, the reasons, and the purpose of the guardianship, as well as the conditions and circumstances under which it was repealed in the Roman law and its existence in the contemporary Muslim societies even after the reform of the Shariah family law. With regard to guardianship over women in the Shariah law, we will provide an overview of interpretations of legal schools in Islam, pointing out the fundamental differences that are mainly related to the possibility of women's independent action and the scope of powers of their guardians. In the Roman law, the tutela mulierum restricted the business capacities of women by conditioning the validity of certain legal matters with guardians' consent. The consent of the tutor mulierum is, for example, required for such matters as entering into a manus marriage, which results in the ceasing of the guardianship, while the woman comes under the authority of the husband, or his pater familias, the alienation of res mancipi, the assuming and waiving of obligations, etc. In the Shariah law, the guardianship of a woman exists in the case of marriage. According to the majority of lawyers, the Shariah guardian concludes the marriage contract on behalf of the women, which is the condition for the validity of marriage. The Hanafi lawyers, who, under certain circumstances, grant women the option of entering into marriage independently, do not agree with this stand. Although this is a discretionary guardianship, which does not permit coercion and requires the consent of women for entering into marriage, some lawyers believe that in certain cases there is a right of coercion. The guardianship of women is the result of patriarchal views on women in both the Roman and the Shariah law. The lack of confidence in women's reasoning is the motivation for the guardianship, which resulted in the need to protect their interests, or the interests of their family and heirs.
- Subjects
GUARDIAN &; ward; SOCIAL conditions of women; ISLAMIC customs &; practices; MUSLIMS; DOMESTIC relations; PARENTAL consent (Marriage)
- Publication
Godišnjak Pravnog Fakulteta u Sarajevu, 2011, Vol 54, p203
- ISSN
0581-7471
- Publication type
Article