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    Friday, 4 July 2014

    Define Legal Capacity under Islamic Jurisprudence

    What is Legal Capacity? How it is defective and what are the consequences of its defect?


    Introducation

    Nature has given human beings a capacity to demand their rights and to fulfill their duties. And such capacity is given either through inheritance or by birth. However, there are some factors and circumstances, which affect such kind of capacity. In other words, it is not necessary that every person possesses such kind of capacity. This is concept of legal capacity and Islamic Jurisprudence also recognizes this concept.

    Definition

    The fitness of a person for the application of law to his action is legal capacity”.

    Kinds of Legal Capacity

    (i) Receptive
    It is the capacity for inherence of rights and obligations.
    (ii) Active
    It is capacity for exercise of rights and discharge of duties.

    Persons of Full Capacity

    A person of full capacity is living human being of
    • Mature age.
    • Free understanding
    • Muslim faith.
    • Not seized with death illness, and
    • Not seized with solvency


    Factors Affecting Legal Capacity

    There are two kinds of factors or circumstances, which affects legal capacity of a person and these factors or circumstances are:

    (i) Natural Factors or Circumstances

    There are some factors or circumstances, which are naturally developed and human beings have no control over them. These factors or circumstances are called natural factors or circumstances and they affect legal capacity of a person. Followings are these factors or circumstances

    (a) Death Illness

    During death illness, fear of death mentally deminates the ill person. Although such situation affects the legal capacity of the ill person to some extent, yet his/her death illness does not affect completely his/her legal capacity.

    (b) Idiocy

    A common observation about idiot is that he/she, sometimes, remains sensible, but, sometimes, becomes insensible in his/her conversation and acts. Therefore, his/her legal capacity is considered defective one.

    (c) Insanity

    A common observation about an insane is also that he/she cannot make any differentiation between the good and the bad. As he/she has no control over his/her acts, therefore, his/her legal capacity is considered defective one.

    (d) Infancy

    No doubt a child, who is still in his/her mother’s womb, is considered a person, yet his/her life is not certain in the mother’s womb. For this reason, his/her legal capacity is though born., yet the same remains defective one.

    (e) Forgetfulness

    Human beings are to forget by nature. In some circumstances, forgetfulness makes a person legal capacity defective one, and it does not affect a person’s legal capacity in other cases. For example, forgetfulness does not make a person’s legal capacity defective one as far as rights of Allah are concerned, but it affects a person’s legal capacity as far as rights of individual are concerned.

    (f) Minority

    Legal capacity of a minor also remains defective to some extent especially till attainment of maturity. For this reason, a minor cannot be held responsible for criminal liabilities and religious obligations. However, a minor can make financial transactions through his/her guardian.

    (g) Sleeping

    Sleeping is also one of those natural factors or circumstances, which affects a person’s legal capacity.

    (ii) Man Made Factors or Circumstances

    There are some factors or circumstances, which human beings themselves develop and human beings have control over them. These factors or circumstances are called man made factors or circumstances and they affect legal capacity of a person. Following are these factors or circumstances:

    (a) Intoxication

    Legal capacity is onley affected when a person is frocibly intoxicated.

    (b) Insolvent

    In case of insolvency, a person’s legal capacity is affected and, in fact, becomes degective.

    (c) Slave

    In some circumstances, slave’s legal capacity is defective one and his legal capacity is not affected in other circumstances. A slave can marry and divorce, but he cannot be witness in cases and cannot join any office in Islamic state. Even he cannot possess property and cannot marry more than two times.

    (d) Non-Muslim

    As only the Muslim can enjoy rights and fulfill duties within sphere of Islam, therefore non-Muslim’s legal capacity is considered defective one.

    (e) Apostate

    A person, who leves Islam and adopts another riligion, is ousted from the sphere of Islam. Therefore, apostate’s legal capacity becomes defective one.

    Conclustion

    To conclude, it can be stated that it is through legal capacity of a person that it is determined whether law is applicable to his/her acts or not. If a person’s legal capacity is defective one, he/she will not be fit for application of law to his/her acts. The reason is that application of law is only possible to his/her acts when his/her legal capacity is not defective one. 

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    Item Reviewed: Define Legal Capacity under Islamic Jurisprudence Rating: 5 Reviewed By: Usman Ali
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