The Mental State and the
Shariah
Prof. Dr.Omar Hassan Kasule Sr.
Legal Competence (Ahliyyat) & Legal
Guardianship (Wilayat)
I LEGAL COMPETENCE: (ahliyyat)
II RIGHTS AND OBLIGATIONS (huquq
& wajibat)
III DEFICIENT LEGAL COMPETENCE (ahliyyat
naqisat)
IV THE CONCEPT OF WILAYAT
I LEGAL COMPETENCE: (ahliyyat)
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 can not be valid
without 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), of
human intellect (7:179, 8:22). 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 sunnah, 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.
Determination of Intellectual Competence
Intellectual competence can not be
measured directly. Surrogate measures are therefore used by the
Law. 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, 17:23). 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
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, shariah. A legally competent adult
is obliged to know the fundamentals of religion, al
ma'alum fi al diin 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, bay'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
Freedom of action also defines legal
capacity. A person who is restricted like a prisoner has diminished legal
competence. This is because he can not exercise his rights or discharge
obligations fully.
II RIGHTS AND OBLIGATIONS (huquq
& wajibat)
Fundamental rights
The fundamental rights are represented
by the five Purposes of the Law (maqasid al shari'ah):
(a) Religion (din)
(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 can not be denied
because of the mental state. It is only their exercise that can be
regulated by the law in deficient mental states.
Obligations
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 and obligations in different
situations
The rights and obligations 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; he 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 both rights and 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 definite rights as
regards the upbringing of the child but 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 which 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.
Privileges Of The Legally Competent
(kamil al ahliyyat)
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 can not
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. A legally competent adult is responsible for
all his acts of commission or omission. He has obligations under the law
that he has to fulfil. 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 rigour in adults.
III DEFICIENT LEGAL COMPETENCE (ahliyyat
naqisat)
Types of legal competence
Legal competence is of two types
(a) legal competence with regard to rights, ahliyat al wujuub
(b) legal competence with regard to obligations, ahliyat al adaa.
Both types can be full, kamilat, or
deficient, naqisat.
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. Persons with legal incompetence can be excused
from specific obligations.
Impediments to Legal Competence
Adults can be legally incompetent when
they have an attribute recognized 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.
Involuntary impediments to legal competence, mawaniu al taklif ghayr al
ikhtiyariyat, are also referred to as heavenly interventions, awaridh
samawiyah. The following is a list of impedinments recognized by the law:
Intoxication, sukr:
This is loss of full intellectual competence due to taking alcohol or a
psycho-active substance.
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 illness.
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 intellectual faculties is diminished. 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 realize
them
Coercion, ikrah:
If a person is forced into an evil action he is not responsible 7:88,
20:73, 23:33
Traveling, safar:
Traveling 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.
IV 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. 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. 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.
The 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.
END
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