Syed Muhammad Ibrahim Hassan

Roll#285 Section B KLC 4th sem

Submitted to Ma’am Maryam

Q1: Discuss in detail legal capacity of a minor and major? What do you know
about active and receptive capacity? What are the types of legal capacity under
Islamic Law?
Ans. To understand the legal capacity of a minor and major and types of legal
capacity, we should first find out what legal capacity is. So let's try to find out what
is legal capacity.

Introduction:
Allah does not impose impose an obligation on a person unless he attains sme
specific characteristics and qualifications. The capacity of a person which makes
him liable for certain acts and duties which is a responsibility is called "legal
capacity" or "zimma"of a person. In Islamic Law , The lawgiver Allah almighty
does not impose his hukm e shari upon a person who does not possess legal
capacity for the fulfillment of his duties.
The person who possesses legal capacity is termed as "mukkalaf".
There are certain types and requirements for a person to attain legal capacity. In the
following we will try to find.

Meaning and concept:

Legal capacity is called "zimma",which means the quality through which a person
becomes subject to law and becomes answerable for his actions.
"Ahliyah" is the capacity of a person for having rights and duties but for it a person
needs to have certain capability prescribed in sharia.

Requirements for Legal Capacity:

• The first requirement for legal capacity is the ability to understand the
communication or hukm that create obligations.
• Second requirement is that whether the person is able to fulfill his responsibilty.
Islam is a complete code of life, it is a religion where everything is based on
justice. If a person is incapable of performing his obligations, Allah does not
impose his hukm e shari on such person.

Types/categories of Legal capacity

The capacity of a person is divided into:
• Receptive Capacity (ahliyat-al-wujub)

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• Active capacity (ahliyat-al-ada)
capacity to receive or inhere rights and obligations, and capacity for the active
exercise of rights and obligations. The former may be described as "receptive legal
capacity", and the latter as "active legal capacity".
Every person in Islamic Law 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 mentally challenged person, whether in good health or
in illness: all possess legal capacity by virtue of their dignity as human beings.
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, that is, a child between seven and fifteen years of age, or an a
person who is mentally challenged, 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.
The discerning child and the mentally challenged person 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. As for transactions which partake in both
benefit and loss, they are valid but only with the permission of the guardian,
otherwise they are null and void.
Thirdly, active legal capacity is complete upon the attainment of intellectual
maturity. Hence every major person who has acquired this ability is presumed to

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possess active legal capacity unless there is evidence to show that he or she is
deficient of intellect or insane.

Stages of legal capacity:

Man passes through four stages beginning from the existence in his mother's womb
till his majority. They are as follows:
• Embryo
• Infancy
• Age of discretion
• Majority
The legal capacity is imperfect at some stages and perfect at others.
Classification of capacity:
The capacity of a person can be classified as
• Complete capacity: it means complete capacity in terms of ahliyat-al-wujub as
well as ahliyat-al-ada and a man becomes liable for for all acts and punishments
. for this purpose a man must be major, having rushd i.e understanding.
• Deficient capacity: it means the basis for legal capacity is not fully developed ,
where a person can not be held liable for his acts such as capacity od minors
and unborn children
• Imperfect capacity: Where basis for capacity are present but an external
attribute makes it imperfect, such as, capacity of women in hudood cases,
capacity of slaves etc.

Legal capacity of Major and Minor in Islamic Law

In islamic law age of majority is the age at which a person, formerly a minor or an
infant, is recognized to be an adult, capable of managing his or her own affairs and
responsible for any legal obligations created by his or her actions.
A person who has reached the age of majority is bound by any contracts, deeds or
legal relationships, such as marriage, which he or she undertakes. Under islamic
law age of majority is called "balugh".
Legal capacity of a minor remains defective to some extent especially till
attainment of maturity. For this reason, a minor cannot be held responsible for

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criminal liabilities and religious obligations. However, a minor can make financial
transactions through his/her guardian.
Legal capacity of major is perfect and he is liable for all acts and punishments.
Perfect 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, is
founded in the capacity of the mind to understand and to discern. But since
intelligence and discernment are hidden qualities which are not readily apparent to
the senses, the law has linked personal responsibility with the attainment of the age
of puberty, 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. 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, and payment for services
rendered to him.
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.
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(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 only affected when a person is forcibly intoxicated.

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(b) Insolvent
In case of insolvency, a person’s legal capacity is affected and, in fact, becomes
defective.
(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.

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Q2. Differentiate between crime and tort. What are difference between crime and
tort under islamic law of procedure.
Ans:

What is a tort?

A tort is a private breach of someone else’s civil rights, and in the legal world a tort
is what occurs when someone’s negligence directly causes damage to a person and/or
their property. There are all types of torts, but every tort directly results in injury to a
person or damage to a person’s property.Negligence is one of the most common
causes of torts, but there are distinct differences
between unintentional and intentional torts

What is Crime?

The generic definition of a crime is any kind of wrongdoing that affects society, and
crimes are always identified via a state’s legal system and prosecuted accordingly to
a state’s laws and criminal court procedures.  In many personal injury situations, an
injured party is technically classified as the society, and the criminal laws broken
were ultimately set up to protect members of society.

Crimes are always brought to justice within criminal courts of law, and the
punishment that is given to the criminal will fit the structure that was set up by the
state’s criminal laws. Crimes are always punishable acts that go against the laws that
are established to keep peace and the protection of all people

Concept of tort in Islam:

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Holy Prophet S.A.W.W has said that " a muslim is one from whose and hands
other muslims are safe.

In Islamic Law tort has been termed as "jinayat" which means wrong done against
a person or his propery, which are not crimes. Jinayat is an infringement of public
or personal rights of a person which can be related to

1. personal safety

2. safety of his family

3. safety of his property.

4. safety of his reputation

Islamic law provides safety to a common person. Tort is a part of every civilized
society. The parallel term for damages is "daman".

Punishment of tort in Islam:

In infringement of rights of God, state or God provides punishment while in cases

of infringement of right of men, men has been given right to seek remedy. But
there are situations where public and private rights are mixed but right of God
remains pre-dominant . In such cases hudood laws are applicable.

According to Sir Abdur Rahim difference between Tort and crime is that in case of
Crime remedy is conferred by State and in cases of tort remedy is conferred by
another person. In the case of tort, the eventual remedy is compensation(diyat).

In Islamic law, the concept of diyat and daman is to make sure to make a person
responsible and not cause injury to others.

Kinds of tort:
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Ibn e Rushd has elaborated the following kinds of tort

1. against person and body

2. against reputation

3. against property

Allama Kasani has elaborated the following kinds

1. tort against property

2. tort against human being

Al-Taj has elaborated the following kinds of tort:

1. sedition

2. apostasy

3. adultery

4. false accusation

5. robbery

6. drinking

7. theft

Elements of Tort:
Certain elements of tort in addition to Rights and remedy, are discussed by
Muslims jurists such as;
a) Malice and Motive
b) Damage and Damages

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a) Malice and Motive:
It means a wrongful act done will fully without just excuse. It is bad intention
against other person. There is two type of Malice.
1)Express and
2) implied

b) Damage and Damages:

Damage and Damages are not synonymous words but these are different terms.
Damage is a legal injury which is to be compensated while damages is awarded by
the court for the damage sustained by the plaintiff due to the wrongful act of the
defendant.

Remdies in Tort:
The following remedies are recognised in an action for tort;
a) injunctions
b) Qisas and Diyat
c) special kind of compensation ( Ghurrah ) in cases of destruction of embryo,
suffered during pregnancy
d) Restitution or refund
e) Action for recovery of land
f) Abatement of nuisance
g) Distress damage feasance
h) Action for mesne profits
i) Self defence
j) Action in ghasab and ittelaf cases

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Concept of Crime in Islam:

Jarimah : to do what has been prohibited by Shari’ah or not to do what has been
ordered by shari’ah tp be done for which punishment of hadd or ta’zir has been
prescribed

Terms related to crime

• Masiyah (disobedience) : commission of prohibited act and the omission of an
obligatory act. All crimes are ma’siyah but not all ma’siyah are crimes.

• Al –Zanb(sin) : reward/punishment for commission of ma’siyah. All Ma’siyah

are sin

Classification of Crime
Ta’zir Qisas Hadd
Crime punishable with Crime punishable Crime punishable with fixed
discretionary punishment with a fixed punishment
punishment
Right of public Right of individual Right of public/right of God
Not mentioned clearly in Mentioned clearly Mentioned clearly in Al-Quran
Al-Quran and Hadith in Al Quran and and Hadith
Hadith
3 types : Murder & Hurt 7 types of crime :
Ma’siyah(disobedience), Zina,qazaf,sariqah,hirabah,shru
maslahah(public b al khamr, riddah, baghy
interest), mukhlafat
(delinquencies)
Ta’zir : corporal (death Qisas/diyat Hudud (depends on crime)
punishment eg repeat
many times,
sodomy(AH),
mastermind, rape),
withdraw someone
freedom, financial,
verbally and other
Not fixed . Depends on Can be substitute Fixed and cannot be reduced
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 discretion of judge. Can to Diyat, the
be as low as pay family has right to
compensation or death pardon the
sentence offender

Concept of Punishment
• Al-uqubah : infliction of determined from of penalty for violation of a legal
order in order to protect the interest of public.

• Punishment is last resort

• Must first measure by block or control. How ? internal controls like belief in
Allah and hereafter or external controls like focus in prayer, perform fasting,
payment of zakat

Condition for punishment

• Legal which is based on Islamic law (punishment permissible in islam)

• Strictly individualized

• Common (must be equal and similar to everyone except in certain cases.

Objectives of punishment
Preventing harm is given priority then gaining benefit
Retribution (Al-Jaza/ganti rugi) – look at past
• Crime rouses anger of the society to the offender and feel sympathy with the
victim

• Punishment is general retaliation of society to maintain peace and social

order

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 • If involve right of individual, punishment provide for satisfaction of victim
& family “Whoever assaulted you, then assault him in the same way that he
assaulted you” (Al Baqarah :194)

Prevention + deterrence (Al-Zajr) – look future

• Prevent the offender from re-committing the crime (specific) and prevent
other from doing the same crime(general)

• It is based on speed which the accused is tried & punished and on the public
manner of the execution of punishment (execute in public)

Reformation + Rehabilitation (Tawbah)

• Rehabilitate the offender from committing the crime

• Obtained from principle of tawbah

• Expiation

• To clear someone sin with Allah

• “Whoever commits a crime deserving of hadd and receives its punishment in

this world, this will be its expiation”

• The offender who has been punished in this world will not be punished in
hereafter for same crime.

• Main differences between both:

• 1. Method
• A tort (jinaya) is something that is classified as a wrongdoing against an
individual, while a crime (jarimah) is classified as an illegal act that affects
the entire social order our communities live within.

• 2. Intent
• Tort (jinaya) can be unintentional, and many times they involve accidents
caused by negligence. This negligence certainly can still cause serious

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 damage to the accident victim(s), which is why torts are tried in civil court
and compensation is metered out based on the victim’s losses due to
damages and the measure of wrongs involved with the tort.

• A crime (jarimah) is an intentional, planned wrongdoing that affects society.

There are situations in which an innocent individual may suffer during
criminal activities, but usually crimes are a direct action against the law that
aim to gain in some way from the specific wrongdoing.

3. Effect on Society
The ways in which torts and crimes affect society differ, but the impact is always
going to be negative no matter what the circumstances are.
• A tort (jinaya) is something that ultimately distresses the well being of
another individual who then seeks out legal action and other forms of
compensation (damaan).

• A crime (jarimah) affects society on a more grand scale, and the criminal
laws established within any given state will make certain that criminals are
adequately punished for their committed crimes.

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