Principles of Islamic Jurisprudence by MH kamali

An insane person a foetus in the womb a minor and a

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Unformatted text preview: ties which are not readily apparent to the senses, the law has linked personal responsibility with the attainment of the age of majority (bulugh), which is an obvious phenomenon and can be established by factual evidence. However, it is the intellectual faculty of the individual rather than age as such which determines his legal capacity. This is why an adult who is insane, or an adult of any age who is asleep, is not held responsible for his conduct. The principle here is dearly stated in the Hadith which provides: `The pen is lifted from three persons: the one who is asleep until he wakes, the child until he attains puberty, and the insane person until he regains sanity. Tabrizi, Mishkat, II, 980, Hadith no. 3287.] Receptive legal capacity may either be 'deficient' or 'complete'. The receptive legal capacity of a child in the womb is incomplete in the sense that it can only receive certain rights, such as inheritance and bequest, but cannot bear any obligation toward others. Receptive legal capacity is complete when a person can both have rights and bear obligations. This type of legal capacity is acquired by every human being as of the moment of birth. During its infancy and later stages of childhood, a child is capable of discharging, albeit through his guardian, certain obligations in respect, for example, of maintenance, liability for loss (daman), and payment for services rendered to him. As for the active legal capacity, three possible situations are envisaged. First, a person may be totally lacking of active legal capacity, as in the case of a child during infancy or an insane person of any age. Since neither is endowed with the faculty of intellect, no legal consequences accrue from their words and acts. When a child or a madman kills someone or destroys the property of another person, they can only be held liable with reference to their property, but not to their persons. They cannot be subjected, for example, to retaliation, or to any other type of punishment. Second, a person may be partially lacking in active legal capacity. Thus a discerning child (al-sabi almumayyiz), that is, a child between seven and fifteen years of age, or an idiot (ma'tuh) who is neither insane nor totally lacking in intellect but whose intellect is defective and weak, possess a legal capacity which is deficient. Both of them possess an active legal capacity which is incomplete and partial. idiot (ma`tuh) is a person who is markedly defective of understanding. A foolish and reckless person (sufih) is also regarded as being of defective legal capacity, in a lesser degree than the ma'tuh. Cf. Abdur Rahim, Jurisprudence, p. 240.] The discerning child and the idiot are capable only of concluding acts and transactions that are totally to their benefit, such as accepting a gift or charity, even without the permission of their guardians. But if the transaction in question is totally disadvantageous to them, such as giving a gift or making a will, or pronouncing a divorce, these are not valid at all even it their guardians happen to approve of them...
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