Mahkum Ahliyah

(Legal capacity)
Mahkum Aliyah is the legal capacity of a person to acquire rights and duty
prescribed in hukam sharia. Ahliyah is the capacity of person or the ability of
person for having the rights and duties of sharia but for it the person needs
to have certain capability for it prescribed in sharia.
Mukkalaf: he is the person who possesses legal capacity whether he acts
directly or through delegation of authority.
The first requirement for legal capacity is the ability to understand the
communication or the hukam that creates obligations. In addition to it there
are some other requirement or conditions for legal capacity, the conditions
of the requirement for legal capacity is called ahliyah.
AHLIYA (LEGAL CAPACITY)
The literal meaning of ahliyah means the fitness or the ability. The fitness or
ability to acquire rights and performance of duties or execution of duties.
The meaning indicates two types of capacities one is the capacity for
acquisition of rights and other is the capacity for execution of duty. In the
opinion of some jurists, the term dhimmi means the ability to acquire rights
and obligations.

CONDITION FOR LEGAL CAPACITY

Ahliyah or the legal capacity has two heads, one acquisition of rights and
other execution of duty. Conditions are according to two heads.
For acquisition of rights and obligation >
the main condition for acquisition of rights is being a human, insaniyat is the
main and only condition for acquiring the rights and obligations. There is
complete agreement of jurists on this form of capacity is possessed by each
human.
For execution of duty >
There are certain condition for capacity to execute duty. The execution of
duty means the ability to perform certain acts and understand statements of
lawgiver. The first condition for execution of duty is the need to understand
known is hukm sharia as aql (intellect). The person needs to understand the
statement of lawgiver and has intellect. The second condition for execution
of duty is rushd (discretion), meaning the ability to differentiate between two
bad and good. Most jurist say that these two conditions are proved by balug
(puberty), by attaining puberty the execution of duty can be referred and it
means that the puberty means that person mental faculty has fully
developed but there are some situation where the puberty does not
determine the condition for execution of duty. Some person may have
attained the age of puberty but his mental or aqal not fully developed, or
where a person may have not attained the age of puberty but has attained
the full mental capacity of aqal and discretionary power.

Capacity of execution
The capacity further divided in three types
1) Capacity for khitab al jina; legal capacity for criminal liability, this type
of capacity is regarding the understanding of criminal acts.
2) Capacity for khitab al muamalat; legal capacity for transactions. It is
based on the ability to understand transactions.
3) Capacity for khitab al ibadat; legal capacity for performing ibadat. Ability
to understand ibadat.
Muslim jurist divide legal capacity onto three types, complete, deficient
and imperfect legal capacity.

COMPLETE CAPACITY
Complete capacity is found in a human being after his birth, this makes
him eligible for acquisition of rights al all kind and obligations.
Complete capacity for execution is established for a person when he
attains full mental development and covers the age of puberty.
A Quranic verse lays down clearly that there are two conditions that must
be fulfilled before the wealth of orphans can be handed over to them,
these are puberty and discretion. The term rushd (discretion) according
to majority jurist signifies the handling of financial matters. Rushd means
the ability to understand the avenues of profit as well as loss. On attaining
complete capacity, an individual can be obligatory to different kinds of
khitab. He therefor becomes liable to punishment and becomes liable to
transaction and ibadat.

Deficient capacity
Deficient capacity is assigned where the basis of legal capacity is not fully
developed thus the person may have not been born or may have not
reached full mental development.
1) The unborn child: the deficient capacity or incomplete capacity are
established for a person not yet born or fetus. Some right are
established for unborn child but no obligations because the unborn
child is part of mother. If mother or father of unborn child does any
purchase, the unborn child born is not liable for it. The unborn child
acquires the right of freedom from slavery and inheritance.
2) Capacity of dead person: a dead person also has some rights but
deficient. The debts funeral expense are taken from dead person’s
treasury. If a person had thrown net into sea and dead before catching
fishes, the fishes belongs to dead person.
3) Capacity of minor: a child possesses a complete capacity for acquisition
of rights and obligations until he attains the age of puberty. He lacks
the capacity of execution; the minor has some capacity of appointing
 the authoritative wali for its financial transactions. The wali can make
financial transactions on behalf of minor. The wali cannot make some
of the transaction like transaction of divorce, charity or loan from
wealth of minor.

Imperfect capacity
The capacity for acquisition may be perfect tor imperfect, imperfect
capacity is assigned to women and slaves
Legal capacity of woman: a woman is said to have imperfect capacity,
women cannot be the head of the state, woman cannot be judge, woman
has not right to divorce as man has and woman’s inheritance has half the
right as man has, woman cannot give testimony in criminal matter judged
according to hudud and qisas.
The value of diyat is half that of man, this explained according to most
jurist as man has more financial responsibility as woman has but some
critics arise that in modern time the woman earns as much as man, in
answer to it man has to pay the dower and marriage expenses not woman.
Legal capacity of slave: slave has some imperfect capacity for rights and
execution. The salve does not has right to possess ownership and right to
acquire property. Slave has legal capacity of the entire obligation assigned
to him regarding ibadat and criminal offences.
CAUSES OF DEFECTIVE LEGAL CAPACITY
The causes of defective legal capacity are those factors that affect the
capacity of person to acquire rights and obligations or the performance of
duty. These causes make complete capacity into deficient or imperfect
capacity. Jurist divide causes of defective capacity into two types namely
natural causes and acquired causes(person make it for himself)
1 NATURAL CAUSES OF DEFECTIVE CAPACITY
These causes are not in control of the subject (mukallaf) and this cause
result from the act of lawgiver and the creator. Jurist list ten causes
1) Minority; It is the state of human being after the birth and before
puberty. This is not the cause of defective capacity but it is condition
when the child has acquisition of rights but has no capacity of duty due
to lack of aql or intellect and rushd known as discretion. Minor has right
to appoint wali for execution of his property and other contracts not
including divorce and marriage but cannot performance it himself
because he has no ability to make difference between profit and loss.
2) Insanity; lawgiver has established the rights and obligations for insane
persons but not the performance of duty due to lack of intellect and
discretions. Insane person cannot make any contract, any contracts of
void person are void, and insane person is not liable for punishment
and ibadat.
3) Idiocy; it is a state of human being when a person sometime speaks like
sane person but sometimes speak insanely so lawgiver has assigned
him rights but not the performance of duty. Idiot person can make no
transaction and are considered void.
4) Sleep and fits of fainting; a person in state of sleep of fainting is liable
for punishment and any wrong done like if a person in sleep falls on
child and kills him so he is not liable for murder.
ACQUIRED CAUSES OF DEFECTIVE CAPACITY
Acquired causes are those that are created by person himself and in which
human being and his choice are factor. Muslim jurist list seven such causes
namely intoxication, ignorance, jest, coercion, and mistake.
1) INTOXICATION; drunkenness is state of person where the person’s
mental capacity suspends for some time. Capacity for acquiring right is
 available for drunk person but the capacity of execution is not available
for drunk person and wrongs done by drunk person is punishable.
2) COERSION; It is situation when man is forced to do something without
the will or consent of that person. Some are justified coercion in which
the qadi justifies that person is coerced and is not liable for
punishment, some are unjustified coercion in which a man does
something on his will and later say he has done on behalf of someone
else. So coerced person has defective capacity.
3) Mistake; when a person does something without being aware of the
consequences and not willingly does that is situation of mistake. It is
Islamic tradition that hudud is waived for the person who does
anything in mistake. Person is not liable for punishment but has cause
of defective capacity.