[Note: Q5 and Q6 are purely discussion based and require arguments, so their answers cannot be found exactly in any book.]


Q.7. Define legal capacity(al-ahliyyah).discuss the legal capacity of minor (sabi).

Ahl¯ıyah or Legal Capacity

The literal meaning of the word ahl¯ is absolute fitness or ability.

Ahl¯ıyah is “the ability or fitness to acquire rights and exercise them and to accept duties and perform them.” This meaning indicates two types of capacity: one based on the acceptance or acquisition of rights and the other on the performance of duties. These are called ahl¯ıyat al-wuj¯ub and ahl¯ıyat al-ad¯a’ or the capacity for acquisition (of rights) and the capacity for execution or performance of duties. Capacity for acquisition enables a person to acquire both rights and obligations, while capacity for execution gives him the ability to exercise such rights and perform his duties. In the opinion of some jurists, the term dhimmah also means the ability to acquire rights and obligations.

The majority of the jurists consider dhimmah to be an imaginary container or receptacle that holds both the capacity for acquisition and the capacity for execution. It is the location or place of residence for the two kinds of capacity. In short, dhimmah is the balance-sheet of a person showing his assets and liabilities, in terms of his rights and obligations. In Islamic law, dhimmah is deemed a requisite condition for the existence of ahl¯ıyah.
According to al-Sarakhs¯ı, dhimmah is the “trust” that was offered to the mountains, but they refused; Man accepted it. Thus, dhimmah is an attribute conferred by the Lawgiver. It is a trust resulting from a covenant (ahd). The fact that dhimmah is a covenant between the Lawgiver and the ‘abd (subject) means that dhimmah can be assigned to a natural person alone. In Western law, the term dhimmah conforms with “personality,” which is an attribute conferred on a natural person.

The Underlying Bases of Legal Capacity

Legal capacity, as stated, is of two types: ahl¯ıyat al-wuj¯ub and ahl¯ıyat al-ad¯a’. Ahl¯ıyat al-wuj¯ub is defined as the ability of a human being to acquire rights and obligations. It may, therefore, be referred to as the capacity for acquisition.

Man¯at is a thing from which another thing is suspended. The man¯at. or basis for the existence of the capacity for acquisition is the attribute of being a human or natural person (ins¯an¯ıyah). There is complete agreement among jurists that this form of capacity is possessed by each human being irrespective of his being a mukallaf.

Capacity for execution, on the other hand, is defined as the “capability of a human being to issue statements and perform acts to which the Lawgiver has assigned certain legal effects.” The man¯at. Or basis of the capacity for execution is ‘aql (intellect) and (rushd) discretion. ‘Aql here implies the full development of the mental faculty. As there is no definitive method for checking whether this faculty is fully developed, the Lawgiver has associated it with bul¯ugh or puberty.

Thus, the presumption is that a pubescent person is assumed to possess ‘aql necessary for the existence of the capacity for execution. This presumption, however, is rebuttable, and if it is proved that though a person has attained puberty, he does not yet possess ‘aql, capacity for execution cannot be assigned to such a person. This is the view of the majority of the jurists.

The H.anaf¯ıs acknowledge a deficient capacity for execution for purposes of some transactions for a person who has attained a degree of discretion, even if his mental faculties are not yet fully developed. Thus, a minor (s.ab¯ı) who possesses discretion may be assigned such a capacity, for the khit.¯ab of mu‘¯amal¯at.

Again, there is no way here of determining whether the minor has attained discretion. The H.anaf¯ı jurists have, therefore, fixed the minimum age of seven years for assigning such a capacity; anyone over seven years of age who has not yet attained puberty may be assigned such a capacity.

Accordingly, this type of capacity is divided into three kinds on the basis of the type of liability associated with an act:

1. Capacity for the khit.¯ab jin¯a’¯ı or legal capacity for criminal liability. It is based on the ability to comprehend the khit.¯ab jin¯a’¯ı, ie, the communication pertaining to criminal acts.

2. Capacity for the khit.¯ab of ‘ib¯ad¯at or legal capacity for ‘ib¯ad¯at. It is based on the ability to understand the khit.¯ab of ‘ib¯ad¯at, ie, the communication from the Lawgiver pertaining to acts of worship.

3. Capacity for the khit.¯ab of mu‘¯amal¯at or legal capacity for transactions. It is based on the ability to understand the khit.¯ab of mu‘¯amal¯at, ie, the communication from the Lawgiver pertaining to the mu‘¯amal¯at.

Two of these are civil and criminal liability, while the third is an addition because of religious law. The reason for separating the capacity for execution into these three types is to indicate that a person may, for example, be in possession of the capacity for transactions, but not the capacity for punishments. To put it differently, all three kinds of capacity may be found in the person who is sane and a major, but one or more of these may be lacking in other persons.

Complete Capacity

Muslim jurists divide legal capacity into three types: complete, deficient and imperfect. The terms k¯amilah,n¯aqis.ah and q¯as. irah are used to distinguish between such capacities.

Complete capacity for acquisition is found in a human being after his birth. This makes him eligible for the acquisition of all kinds of rights and obligations. Complete capacity for execution is established for a human being when he or she attains full mental development, and acquires the ability to discriminate. This stage is associated with the external standard of puberty. The physical signs indicating the attainment of these signs, puberty is presumed at the age of fifteen in both males and females according to the majority of the jurists, and at the age of eighteen for males and seventeen for females according to Ab¯u H. an¯ıfah.

Attaining bul¯ugh (puberty) alone is not sufficient, however. For a person to acquire complete capacity for execution, in addition to puberty, the possession of rushd (discrimination; maturity of actions) is stipulated as well. The dal¯ıl, or legal evidence, for this is the verse of the Qur’¯an:

Make trial of orphans until they reach the age of marriage; then if ye find sound judgement in them, release their property to them; but consume it not wastefully, nor in haste against their growing up.
[Qur’¯an 4 : 6]

This verse lays down clearly that there are two conditions that must be fulfilled before the wealth of orphans can be handed over to them. These are bul¯ugh al-nik¯ah. and rushd.

The term rushd, according to the majority, signifies the handling of financial matters in accordance with the dictates of reason. The rash¯ıd is a person who can identify avenues of profit as well as loss, and act accordingly to preserve his wealth. Rushd is the opposite of safah (foolishness), which implies waste and prodigality. Sh¯afi‘¯ı jurists define rushd as maturity of actions in matters of finance as well as of d¯ın.

In their view, a person who has attained puberty and is adept in dealing with financial matters cannot be called rash¯ıd, unless he obeys the ah. k¯am of the shar¯ı‘ah in matters of ‘ib¯ad¯at as well. A person, then, is eligible for taking over his wealth if he is both a b¯aligh and a rash¯ıd.

This is the general view. Ab¯u H. an¯ıfah, however, maintains that a person who attains the age of twenty-five years, must be delivered his property irrespective of his attaining rushd. In addition to this, he maintains that if a person attains bul¯ugh and rushd and is given his property, but subsequently loses his rushd, while yet under twenty-five, he cannot be subjected to interdiction (h. ajr ). Ab¯u H. an¯ıfah appears to be giving preference to life and freedom of the individual over his wealth in these cases. The majority of the jurists (jumh¯ur) subject a person to interdiction if he has not attained rushd or even when he loses it subsequently, irrespective of his age. On attaining complete capacity, an individual comes within the purview of the different kinds of khit.¯ab. He, therefore, becomes liable to punishments because of the khit.¯ab jin¯a’¯ı being directed towards him, just as he becomes liable because of the khit.¯ab of transactions and ib¯ad¯at.

The stages leading to complete legal capacity

The conditions laid down by the H. anaf¯ı jurists indicate that there are three stages through which an individual passes with respect to his capacity for execution.

1. The first stage is from birth till the attainment of partial discretion, which is considered to be the age of seven years. During this period, the child is assumed to lack ‘aql and discretion completely, and is ineligible for the assignment of a capacity for execution.

2. The second stage commences from the age of seven and continues up to actual puberty or the legal age of puberty, whichever is earlier. Deficient capacity for execution is normally assigned during this stage, as the individual possesses a certain amount of ‘aql and discretion.

3. The final stage commences from actual physical puberty or the legal age determined for it, whichever is earlier. On reaching this age the individual is assigned complete capacity for execution, and becomes eligible for each kind of khit.¯ab. An exception arises in the case of safah and the individual may be placed under interdiction for some time. Rushd (discretion) is a condition for attaining this stage, in addition to puberty.

Deficient and Imperfect Capacity

Deficient capacity is assigned in cases where the man¯at or basis of legal capacity is not fully developed.

Thus, a person may not have been born as yet or he may not have reached full mental development. In other cases, the attribute of being a human may be missing altogether. Imperfect capacity is assigned in cases where the bases of capacity, being a human and possession of discretion, are present, but an external attribute has been introduced that does not permit the recognition of the legal validity of certain acts.

Capacity of the minor (s.ab¯ı)

A child possesses a complete capacity for acquisition of rights and obligations, but until he attains the age of actual or legal puberty, he lacks the capacity for execution. To facilitate matters, this child is made liable by the shar¯ı‘ah only for those obligations that he can meet. Deficient capacity for execution is assigned to a non-pubescent who possesses some discretion, or to a ma‘t¯uh who has attained puberty yet lacks complete mental development.

The person who possesses deficient capacity is not subject to the khit.¯ab jin¯a’¯ı; he cannot, therefore, be held criminally liable. The minor, however, is subjected to ta’d¯ıb (discipline)—the reason being that the khit.¯ab jin¯a’¯ı is applicable to that person alone who comprehends the khit.¯ab fully. This is based on the principle of legality in Islamic law.

With respect to the ‘ib¯ad¯at, there are detailed discussions whether the khit.¯ab is addressed to the s.ab¯I and ma‘t¯uh by way of nadb (recommendation) or khiy¯ar (choice), or whether it is addressed to them at all. There is no dispute that there is reward (thaw¯ab) for such a person for the performance of the ‘ib¯ad¯at. The H.anaf¯ıs treat the issue of legal capacity of the minor in a somewhat different way. Our major concern here is for the capacity of such a person for the purpose of transactions.

1. Financial transactions are established against the dhimmah of the s.ab¯ı. Though he cannot meet them personally due to the absence of the capacity for execution, the Lawgiver allows his wal¯ı (guardian) to stand in his place and represent him through a substitutory duty. The s.ab¯ı is also liable for any damage caused to another’s property, and for the maintenance of his wives and near relatives. He is also liable, except in the opinion of the H.anaf¯ı school, for the payment of zak¯at. All financial transactions are divided into three types for determining the liability of the discriminating minor.

(a) Purely beneficial transactions. The transactions falling under this category are the acceptance of a gift or of s.adaqah. These are allowed to the person who has not attained puberty, but who can discriminate and has been permitted by his wal¯ı (guardian) to exercise such acceptance.

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“A Momin does not taunt, does not curse and reproach, does not indulge in obscene talking and obscene acts.” [Tirmidhi]