Lecture for 3rd year medical students on 17th March 2001 by Professor Omar Hasan Kasule Sr.
CONDITIONS OF AHLIYYAT, shurut al ahliyyat:
Intellect, 'aql, and puberty, buloogh
Knowledge, 'ilm and
TYPES OF LEGAL COMPETENCE:
Legal competence with regard to acquisition of rights, ahliyat al wujuub
Legal competence with regard to execution of obligations, ahliyat al adaa
RIGHTS AND OBLIGATIONS, huquq & wajibat
Rights in different situations:
Obligations in different situations
Rights, obligations, & capacity:
PRIVILEDGES OF THE LEGALLY COMPETENT
Responsibility for actions
VOLUNTARY IMPEDIMENTS, mawani’u ikhtiyariyah
INVOLUNTARY IMPEDIMENTS TO LEGAL COMPETENCE,
Mental retardation, safah:
Loss of consciousness, ighma:
Infancy and childhood, sigar:
Forgetting, nisyaan & sahaw:
Absence of mind, ghaflat:
THE CONCEPT OF WILAYAT
Qualifications of the waliy
Duties, limits, and liabilities of the waliy
Selection of the waliy
Definition: A person with full legal competence has full rights in decisions and actions regarding his person
and property. He also has full responsibility for his actions of commission or omission. Legal competence, ahliyyat, is the
basis for intention, niyyat. Niyyat is the basis of validity of human actions. Therefore human actions cannot be valid without
Types of legal competence: Legal competence is of two types (a) legal competence with regard to acquisition
of rights, ahliyat al wujuub (b) legal competence with regard to execution of obligations,
ahliyat al adaa.Both types can be
full, kamilat, or deficient, naqisat.
Legal competence can be restricted to specific incompetencies or can be general. For example intellectual incompetence may
not be generalized for all competencies. Deficiency can be permanent or temporary. The deficiency may be general or specific.
The general may involve several intellectual functions or cover several practical situations. The specific is more restricted.
A person may be incompetent in some matters and not others. Legal competence can be with regard to rights,ahliyat al wujuub or with regard to obligations, ahliyat al adaa. Rights can not be denied but their exercise can
be restricted. Obligations depend on the level of legal competence.
Conditions of legal competence, shurut al ahliyyat: The following are the defining conditions of
legal competence: (a) intellect, 'aql, and puberty, buloogh (b) knowledge, 'ilm and (c) freedom, hurriyat.
The main condition is that of intellect. All the others depend on and support it. The human intellect is so important that
the Qur'an has severely condemned misuse, ta'atiil al’ aql, of human intellect (7:179, ). No human action
can be carried out well and correctly without using human intellect correctly.
INTELLECT, 'aql AND PUBERTY, buloogh:
Intellect and puberty are considered together because they are closely related. A child with superior intellect
but is pre-pubertal has diminished legal competence. A post-pubertal person with intellectual deficiency has diminished legal
competence. A person who is defined as having legal competence must have sufficient intellectual capacity to understand rights,
obligations, and the accompanying actions. He must also be able to understand the basic sources of Islamic Law, the Qur'an
and sunnat, as they relate to actions contemplated. However this knowledge need not be comprehensive or primary; those who
do not know can follow those who know, taqlid. We must distinguish intellectual competence from wisdom. Many youths in their
teen ages commit many mistakes because they lack experience and wisdom and not because they are intellectually incompetent.
Intellectual competence cannot be measured directly. The Law therefore uses surrogate measures. The most commonly used and
legally accepted surrogate measure is puberty, buloogh. At puberty a group of observable intellectual and mental phenomena
appear that indicate intellectual maturity. These coincide with the development of abstract thought and ability to reason
rationally. The thinking of the pre-pubertal child is concrete whereas that of the post-pubertal teenager is abstract. Abstract
thinking is more powerful and efficient than concrete thinking. Spermache in males and menarche in females are biological
signs of puberty. Secondary sexual characteristics develop in both genders at puberty. In both genders the age of 15 is considered
to be an age of intellectual maturity and therefore of legal competence. The Qur'an has recommended testing orphan children
to make sure that they are mature enough intellectually to be given responsibility for their wealth (4:6, 6:152, ). Sexual awareness and sexual restrictions are also tied to intellectual development.
Pre-pubertal children are allowed to enter rooms of adults but they have to request permission if they are post-puberty (24:58-59).
Knowledge of obligations, rights, actions and their consequences can affect legal competence. A human has an inner
capacity to know what is good, hasan, and what is bad, qabih. This knowledge may not be perfect and reliable all the time
for all people. It is therefore necessary to have knowledge from the creator as set out in the law, shariat. A legally competent
adult is obliged to know the fundamentals of religion, al ma'alum fi al ddiin bi al darurat. These include knowledge of the
basic acts of worship as well as the prohibited actions.There is a specific
obligation to know the law relating to an activity being undertaken. The laws and regulations of marriage must be known by
those intending marriage, nikaah. Those engaged in trade must know the laws relating to buying and selling, buy'u wa al
shara'u. The following grades of actions must also be known: (a) the obligatory, fardh; some may be individually
obligatory, fardh 'ain or communally obligatory, fardh kifayat (b) recommended, manduub (c) permissible,
mubaah (d) offensive, makruh (e) unlawful, haram. It is also important to understand that one act can
be permissible in one circumstance and forbidden in another circumstance like salat before sunset and after it. The legal
dispensations, rukhsah, must be known for all obligatory actions.
Freedom of action also defines legal capacity. A person who is restricted like a prisoner has diminished legal
competence. This is because he cannot exercise his rights or discharge obligations fully.
Jurists did not consider emotional competence or emotional maturity as a criterion of legal maturity. We however
now know that emotional competence is different from intellectual competence. Emotions are powerful in motivating or preventing
specific actions. There may be grounds for legal restrictions on a person who is intellectually mature but is emotionally
B. RIGHTS AND OBLIGATIONS, huquq & wajibat
The fundamental rights are represented by the five Purposes of the Law, maqasid al shari'at: (a) Religion, diin
(b) Life, nafs (c) Intellect, 'aql (d) Progeny, nasl (e) property, maal. These rights are not abridged on the basis of gender,
age, sanity, or disease. There are innate rights for all humans that cannot be denied because of the mental state. It is only
their exercise that can be regulated by the law in deficient mental states.
For each of the five fundamental rights mentioned there are rights and obligations. For example the right to freedom
of religion carries the obligation to protect the basic tenets of religion from distortion and undertaking religious activities.
The right to life also has the obligation to preserve life and not harm it except as allowed by the law. The right to property
has the obligation to pay zakat and feed the immediate family.
RIGHTS IN DIFFERENT SITUATIONS:
The rights of the individuals vary and depend to a large extent on the legal competence.A fetus has rights of inheritance, nutrition, and medical care but has no obligations at all to anybody.
A pre-pubertal child has the right to be looked after and educated by the parents. Beyond puberty the human has full rights
but these also vary by circumstances. For example the rights of the wife are not the same as those of the husband nor are
their rights exactly the same. In child custody, the non-custodial parent who is the father has definite rights as regards
the upbringing of the child but has the obligations of nafaqat.
OBLIGATIONS IN DIFFERENT SITUATIONS
The obligations of the individuals vary and depend to a large extent on the legal competence.A fetus has no obligations at all to anybody. A pre-pubertal child has diminished obligations like obeying
parents, starting praying at the age of 7 years and being punished for not praying beyond the age of 10 years. Beyond puberty
the human has full obligations but these also vary by circumstances. For example the obligations of the wife are not the same
as those of the husband nor are their rights exactly the same. In child custody, the non-custodial parent who is the father
has the obligations of nafaqat.
RIGHTS & OBLIGATIONS AND RELATIONSHIP TO LEGAL CAPACITY:
The variation of rights and obligations explained above depend on the level of legal competence that as we mentioned
before depends to a large extent on the intellectual competence. Thus the fetus has the least number of obligations whereas
an adult has a full slate of rights balanced by obligations.
C. PRIVILEDGES OF THE LEGALLY COMPETENT
The legally competent person has full rights regarding his person, nafs,
and his wealth, maal. The rights of the person include decisions on medical treatment;
rights about wealth include property and financial transactions, and rights on personal matters like marriage and divorce.
The rights exist from the fetal period and cannot be denied on account of deficiency in legal competence. The exercise of
these rights is restricted in cases of legal incompetence to protect the interests of the incompetent.
What has been said above about obligations to the self apply to property
There are rights that are not material like honor, sharaf, and social respectability, muru’at.
A legally competent adult must be able to fulfill commitments and obligations.
RESPONSIBILITY FOR ACTIONS
A legally competent adult is responsible for all his acts of commission or omission. He has obligations under the
law that he has to fulfill. The obligations however vary. The law considers the age of 7 years as the age of discrimination,
sinn al tamyiiz.Between the age of
7 and puberty and depending on the speed of development, a child may have intellectual competence to make correct decisions
about some matters but no actions can be valid unless approved by the legal guardian. After the age of 7, the obligation of
prayer is enforced though not with the same rigor in adults.
D. RESTRICTIONS ON THE LEGALLY INCOMPETENT
TYPES OF IMPEDIMENTS TO LEGAL COMPETENCE:
Persons with legal incompetence can be excused from specific obligations. There are several impediments to legal
competence. Adults can be legally incompetent when they have an attribute recognised by the law as an impediment to legal
competence. These impediments that exempt an adult from performance of obligatory duties, mawaniu
al taklif, may be voluntary, mawaniu al taklif al ikhtiyariyat, or involuntary,
mawaniu al taklif ghayr al ikhtiyariyah.The voluntary impediments to legal competence, mawaniu al taklif al ikhtiyariyat
are also referred to as acquired, 'awaridh muktasabat.. They are impediments
that are (a) a result of conscious human choices (b) which humans could avoid or prevent by appropriate measures (c) which
can be repaired after occurrence.
VOLUNTARY IMPEDIMENTS, mawani’u ikhtiyariyah
Definition: The voluntary impediments are those that are under the voluntary control of the human and are
of three types: ignorance, jahal; intoxication, sikr; and jest, hazal.
Ignorance: Knowledge of some rulings of the Law, ahkaam, is individually obligatory, ‘ilm ‘ayni,
whereas knowledge of others is a communal or collective obligation, ‘ilm kifai. Ignorance of legal rulings does
not nullify legal competence but is considered an excuse in specific situations. Ignorance of basic rulings is not an excuse
in a Muslim-majority country, dar al Islam, but is considered an excuse in a Muslim minority country, dar al harb. Ignorance
of facts and events is an acceptable excuse for example marrying a relative in ignorance or drinking juice without knowing
that it has already fermented and turned into alcohol
Jest, hazal: Jest is to say something when meaning something else. It does not nullify both types
of legal competence, ahliyyat al wujuub & ahliyyat al adaa. It does not abrogate established positions, iqraar.
Hazal in matters of creed, aqidah, is reason for punishment. It also does not abrogate marriage, nikaah, divorce, talaaq,
and resumption of marriage after divorce, ruj’at. It however abrogates business transactions, mu’amalaat.
Intoxication, sukr. This is loss of full intellectual competence
due to taking alcohol or a psycho-active substance. Intoxication could be permitted, mubaah or forbidden, haraam. It is halaal
when it is a result of necessity, dharurat, or coercion, ikraah. It is haram when it has no such basis. It is haram if taken
for a purpose that was not haram. In case of permissible intoxication, the case is treated as that of loss of consciousness.
There is no obligation as regards Allah’s rights but has to make qadha when the intoxication is over. Any verbal pronouncements
have no legal effects. However there is legal liability for actions that have an impact on the rights of humans.
INVOLUNTARY IMPEDIMENTS TO LEGAL COMPETENCE, mawaniu al taklif ghayr al
Definition: Are also referred to as heavenly interventions, awaridh
samawiyah. The following is a list of impedinments recognized by the law:
Insanity, junoon: Insanity is a general term for mental conditions
in which rational reasoning and behaviour are impaired to a severe degree. Extreme cases of insanity give rise to no confusion
at all whereas many are not so easily definable. Psychiatrists should be involved in the definition of psychiatric conditions
that are considered junoon. The restrictions on the insane, hajr al majnoon, covers marriage, divorce, and property transactions. Thus the following actions if undertaken
by the insane are null and void under the law: divorce, talaq al majnoon, and disposal of property, mal al majnoon.
Mental retardation, safah:
The restrictions on the insane mentioned above apply to the mentally-retarded, hajr
al safiih. The Qur'an forbade giving wealth to the mentally-retarded, safiih
(4:5) The guardian concludes contracts for the fool-hardy (2:282). Insanity and mental retardation have various degrees. There
are degrees in which sufficient intellect is retained to make those concerned liable for their actions. The judgement in this
matter is left to the physician. The degree of loss of legal competence should be congruent with the degree of mental retardation.
Loss of consciousness, ighma:
The unconscious person can not exercise his rights nor can he discharge obligations.
Infancy and childhood, sigar: The restriction of rights on the
pre-pubertal child (al hajr sabiyy) ends with puberty. Even before puberty, a child
who is intellectually competent and understands what he is doing, is allowed to make and execute decisions. Actions that are
purely in the interest of the child with no manifest harm such as accepting a gift can be made by the understanding child
without the approval of the guardian. Actions that have the potential to harm the child are null and void if not approved
by the legal guardian.
Terminal illness, maradh al mawt: This term is used for severe illness that can cause death. The mental state of the patient is not normal in
such a condition due to the worry, anxiety, and pain. Salat is modified (KS 506) for terminal illness or any other serious
Forgetting, nisyaan & sahaw: Forgetting is a temporary loss of intellectual competence related to memory.
Absence of mind, ghaflat:
This is a condition in which use of intelectual faculties is dimished. No effort is made to use the full potential of
the human intellect.
Sleep, nawm: Sleep
is a temporary lowering of the level of consciousness. Unconscious intellectual functions continue during.
Menstruation, haidh: The
period immediately before menstruation as well as the period of menstruation are period of increased mental and psychological
stress that affects legal competence. The menstruating women can not be divorced (KS p. 210). She does not pray, fast, or
perform some rites of hajj.
Errors, khata: Humans are prone to err and they can correct their
errors when they realise them
Coercion, ikraah: If
a person if forced into an evil action he is not responsible 7:88, 20:73,
Travelling, safar: Travelling
has psychological and physical stresses that can impair normal intellectual functioning.
There are situations in which legal competence is lost although the person is not intellectually deficient such
as the debtor who is declared legally incompetent to protect the rights of the creditors.
E. THE CONCEPT OF WILAYAT
Legal guardianship, wilayat, is legal authority given to a guardian,
wali, to make and carry out decisions regarding the person, nafs, or wealth, maal
QUALIFICATIONS OF THE WALIY
Guardianship is related to legal competence. The guardian must himself have legal competence to qualify as a guardian.
He must in addition be able to carry out the duties of guardianship
DUTIES, LIMITS, and LIABILITIES OF THE WALIY
A guardian acts on behalf of a person who has deficient legal competence. The decisions of a guardian acting on
behalf of another person are binding on that person
SELECTION OF THE WALIY
guardian, wali, is a blood relation and if not available the state or the judge.
The nearest blood relatives have guardianship with regard to issues like child upbringing, treatment of the child.