- Definition of competence, ahliyyah
- Conditions of incompetence
- Legal guardianship, wilayah
CONDITIONS OF COMPETENCE:
A legally competent person makes decisions and takes actions on his person and property and is responsible his
actions of commission or omission. Actions cannot be valid without legal competence. Competence is not the same as capacity.
The defining conditions of legal competence are intellect, 'aql; puberty, buloogh; knowledge, 'ilm; and
civil liberty or freedom, hurriyat. The main condition is that of intellect. All the others depend on and support it..
No human action can be carried out well and correctly without using human intellect correctly.
RIGHTS AND OBLIGATIONS, huquq & wajibat
The fundamental rights represented by the five Purposes of the Law, maqasid
al shari'at, cannot be denied on the basis of gender, age, sanity, disease, or legal incompetence. Their exercise is regulated
by Law in cases of legal incompetence. Each of the 5 fundamental rights has rights and obligations. The obligations of the
individuals vary and depend to a large extent on the legal competence. The different rights and obligations of males and females
are not related to competence but to different roles in society. Legal competence is of two types: competence with regard
to acquisition of rights, ahliyat al wujuub and competence with regard to execution
of obligations, ahliyat al adaa. Both types can be full, ahliyyat kamilat, or deficient, ahliyyat naqisat.
PRIVILEDGES OF THE LEGALLY COMPETENT
The legally competent person has full rights regarding his person, nafs,
and his wealth, maal. A legally competent adult must be able to fulfil commitments
and obligations. He also acquires rights as a result of commitments and promises made to him. 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 same rigour
RESTRICTIONS ON THE LEGALLY INCOMPETENT
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 are ignorance, jahal;
intoxication, sikr; and jest, hazal. Involuntary impediments to legal competence, mawaniu al taklif ghayr al ikhtiyariyat are insanity, junoon, mental
retardation, safah, loss of consciousness, ighma,
infancy and childhood, sigar, terminal illness, maradh al mawt, forgetting, nisyaan & sahaw, absence of mind, ghaflat, sleep, nawm, menstruation, haidh, erors, khata, cercion, ikraah, and tling, safar
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 of a legally incompetent person. The decisions
of a guardian are binding.