THE METAL STATE AND THE SHARIA
THE CONCEPT OF WILAYAT
The decisions of a guardian are binding
The guardian, wali, is a blood relation, the judge, or the state
LEGAL COMPETENCE: DEFINITION AND CONDITIONS
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 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.
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, 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, 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.
RIGHTS AND OBLIGATIONS (huquq & wajibat)
Fundamental rights: 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 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.
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 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. 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 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, ikrah: If a person if forced into an evil action he is not responsible 7:88, 20:73, 23:33
Traveling, 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.
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.