Guardianship, Its Importance and Developments: A Comparative Study Between Shariah Law and the Positive Law


  • Abdul Azeez Maruf Olayemi Lagos State University, (LASU) Nigeria
  • Anthoney Gbadebo Olagunju Lagos State University, (LASU) Nigeria



Guardianship, Shariah Law, Positive Law, Importance, Transformation


Guardianship ‘Tutelae’ as a legal concept is as old as mankind.  In antiquity, the communal and societal guardian is referred to as a messenger of God, prophet, priest and etc. He or she is believed to be a divine guardian that is appointed by God to lead each community or society, custodis mortalis. However, guardianship as an institution is not restricted to the communal and societal systems alone; it is also important to the family system and to the individual person when he or she is a minor or incapacitated.  The institution is important to ensure that the interest of the present and future generations and the care of the people as o whole are preserved.  However, the institution has positively undergone various developments in the present. Its importance and its transformations are discussed in this paper from the perspective of Shariah and Positive Laws.  


Article published in the ‘ANDA DAN HUKUM DALAM KESEHARIAN’ 21/01/2008,

‘International Developmental Law Organization’, see<> (accessed 03/08/2008).

Atia Waris v. Sultan Ahmad Khan 1959 PLD (WP) Lah. Egypt Law 25 (Personal Law) of 1926 amendment Law 100 of 1985.

Abu Daud, Sunan Abu Daud, Kitabut-Talaq,(Bairut: Darul-Fikir) Vol. 2

Article 16(1)(f) , CEDAW.

Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah [2003] 5 MLJ 106, (accessed 02/08/2007).

Generations United (GU), 1333 H Street, N.W., Suite 500W, Washington, D.C. (accessed 03/08/2008).

Geoge Jamieson (1995), Parental Responsibilities and Rights, Edinburgh: Sweet & Maxwell,

Guardianship Monitoring, ‘A National Survey of Court Practices by Naomi Karp’ AARP Public Policy Institute Erica Wood ABA Commission on Law and Aging. See <> (accessed 01/08/2008).>(accessed 01/08/2008).>(accessed on 02/08/2008).> (accessed on 02/08/2008). (accessed 03/08/2008).>(accessed 26/08/2008).> (Accessed 26/07/2008).

Ibn Rushd, Bidayatul Mutahid wa Nihayatul Muqtasid,(Bairut: Darul Fikir) Vol.1.

Ibn Hazmi , Muhala, (Bairut: Darul-Fikir) Vol.

In The Circuit Court For The Ninth Judicial Circuit, In And For Orange County, Florida In Re: Guardianship Of Case J. D. S., An Adult, B/F Dob: 08/25/80, No.: 48-2003-Cp- 001188-O, See (Accessed 02/08/2008).

Macmillan English Dictionary,(Macmillan Publisher, 2007) 2nd Ed.

Office Of The Public Guardian And Trustee, Publications Ontario50 Governor Street Toronto, On M7a 1n, See (Accessed 02/08/2008).

Public Guardian and Trustee British Colombia, see< Website:> (accessed 15/07/2008).

Ron Shaham, (1997) Family and Court in Modern Egypt, New York, Brill Leiden.

The Substitute Decision Makers, Task Force for the Iowa Department of Elder Affairs

‘Alternatives to Guardianship and Conservatorship’see<> (accessed 24/07/2008).

U.S. Department of Health and Human Services, see (accessed 03/08/2008).

Universal Declaration of Human Rights, Article 16.

United Kingdom (UK) The Children's Act 1989,Schedule 15, (section 5 (5).

URL:> (accessed 05/08/2008).> (accessed 03/08/2008). South African GUARDIANSHIP ACT, 1993. (2) NO. 192 OF 1993. (accessed 17/07/2008).




How to Cite

Olayemi, A. A. M., & Olagunju, A. G. (2023). Guardianship, Its Importance and Developments: A Comparative Study Between Shariah Law and the Positive Law. El-Aqwal : Journal of Sharia and Comparative Law, 2(1), 37–48.