Principles of Islamic Jurisprudence by MH kamali

The basic criterion of distinction between the right

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Unformatted text preview: hts. The community is entitled to punish such violations, but the right of the heirs in retaliation and in diyah for erroneous killing, and the right of the victim in respect of diyah for injuries, is preponderant in view of the grievance and loss that they suffer as a result. The guardian (wali) of the deceased, in the case of qisas, is entitled to pardon the offender or to accept a compensation from him. But the state, which represents the community, is still entitled to punish the offender through a ta'zir punishment even if he is pardoned by the relatives of the deceased. Usul, p. 257; Abu 'Id, Mabahith, p. 145.] III.3 Legal Capacity (Ahliyyah) Being the last of the three pillars (arkan) of hukm shar`i this section is exclusively concerned with the legal capacity of the mahkum `alayh, that is, the person to whom the hukm is addressed, and it looks into the question of whether he is capable of understanding the demand that is addressed to him and whether he comprehends the grounds of his responsibility (taklif). Since the possession of the mental faculty of `aql is the basic criterion of taklif, the law concerns itself with the circumstances that affect the sanity and capacity of the individual, such as minority, insanity, duress, intoxication, interdiction (hajr) and mistake. Legal capacity is primarily divided into two types: capacity to receive or inhere rights and obligations, referred to as ahliyyah al-wujub, and capacity for the active exercise of rights and obligations, which is referred to as ahliyyah al-ada'. The former may be described as `receptive legal capacity', and the latter as 'active legal capacity'. [70. Cf. Abdur Rahim, Jurisprudence, p. 217.] Every person is endowed with legal capacity of one kind or another. Receptive legal capacity is the ability of the individual to receive rights and obligations on a limited scale, whereas active legal capacity enables him to fulfill rights and discharge obligations, to effect valid acts and transactions, and in bear full responsibility toward God and his fellow human beings. The criterion of the existence of receptive legal capacity is life itself, whereas the criterion of active legal capacity is maturity of intellect. Receptive legal capacity is vested in every human being, competent or otherwise. An insane person, a foetus in the womb, a minor and a foolish person (safih), whether in good health or in illness: all possess legal capacity by virtue of their dignity as human beings. [71. Khallaf, 'Ilm, p. 136.] Active legal capacity is only acquired upon attaining a certain level of intellectual maturity and competence. Only a person who understands his acts and his words is competent to conclude a contract, discharge an obligation, or be punished for violating the law. Active legal capacity, which is the basis of responsibility (taklif), is founded in the capacity of the mind to understand and to discern. But since Principles of Islamic Jurisprudence ~ Kamali 304 [69. Abu Zahrah, intelligence and discernment are hidden quali...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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