الولاية على مال القاصر في الفقه الإسلامي وقانون الأسرة الأفغاني : دراسة تحليلية

Abstract

This study examines financial guardianship in Islamic jurisprudence and in Afghan Family Law. Financial guardianship is a system established by Islamic law to protect and manage the wealth of minors and legally incapacitated individuals under specific Sharia-based regulations. The Afghan Family Law has also sought to regulate this matter by enacting specific legislation on financial guardianship. The study aims to provide a detailed analysis of jurisprudential and legal rulings on financial guardianship, assess their alignment with the needs of Afghan society, and propose solutions and recommendations to address any legislative or practical shortcomings in this field. The research problem lies in the ambiguity and lack of clarity regarding some practical aspects of financial guardianship in Afghan law. The current legislation does not provide sufficient details on how guardianship should be exercised, leading to legal and practical challenges. The study employs the inductive method to collect and analyse relevant jurisprudential and legal texts, the analytical method to deconstruct the issues related to financial guardianship and assess the coherence of legal rulings with Islamic principles and their practical implications, the comparative method to compare Islamic jurisprudential rulings with Afghan Family Law and evaluate their consistency, and the fieldwork method by conducting interviews with experts in Islamic jurisprudence, law, and judiciary, as well as a sample of guardians of minors to examine the practical applications and challenges of financial guardianship in Afghan society. The study yielded several key findings, the most notable of which is that the financial guardianship system serves as a legitimate and legal mechanism to protect the wealth of minors and legally incapacitated individuals from loss or mismanagement. It also revealed discrepancies between Islamic jurisprudential rulings and legal regulations in some areas, such as the scope of the guardian’s authority compared to that of the court. Additionally, the study highlighted gaps in Afghan law regarding the criteria for dismissing a guardian, as no precise regulations have been established for cases of dismissal or guardianship transfer, resulting in unfair or unclear decisions. Furthermore, the study examined the experiences of other countries, such as the Qatari model, which could contribute to enhancing and developing mechanisms to protect minors’ wealth in other nations, including Afghanistan, alongside other contemporary legal frameworks.