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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