Mahkum Alaihi and Ahliyyah.

1. (Mahkum Alaihi & Ahliyyah)
Iqbal Saujan
Temp. Assist. Lecturer
Islamic Law & Legislation
Dept. of. Islamic Studies
savjaniqbal@seu.ac.lk
ILM 12023
Islamic Jurisprudence

2. Mahkum' alaih (‫عليه‬ ‫)المحكوم‬
Usul al-Fiqh: Principles of Jurisprudence
✿.In usul al fiqh mahkum' alaih Is mukalaf
✿.Mukallaf is a person whose act invokes hukm or a hukm requires
him to act in a prescribed manner.
✿.Mukalaf is a person who posses legal capacity whether he acts
directly or through delegated authority.
✿.If he is doing the commands of Allah, then he gets rewarded merit
and fulfilled its obligations, whereas if he worked on prohibitions of
Allah, then he will also get the risk of sin and its obligations have not
been met.
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3. Conditions of Mahkum' alaih (‫عليه‬ ‫المحكوم‬)
Usul al-Fiqh: Principles of Jurisprudence
✿. Being able to understand the Hukm (the communication that
creates the obligations)
➢ either independently
➢ or with the help of others, at least the extent allowed him to
practice the contents of the verse or hadith of the Prophet.
✿ . The ability to understand the Hukm (legal taklifi) that the person
to have a perfect sense.
✿ .There are some other conditions on mahkum alaihi that are related
to legal capacity (Ahliyyah)
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4. Explanations
Usul al-Fiqh: Principles of Jurisprudence
✿. There are some characteristics and features identified by the Shariah
to enable the hukm to be in effect on human
✿ .It is called Ahliyyah legal capacity.
✿ .People who do not fall under ahliyyah, not be burdened with any
kinds of taklif and not be held accountable
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5. AHLIYYAH
Usul al-Fiqh: Principles of Jurisprudence
✿. DEFINITION OF AHLIYYAH
✿. Literally: absolute fitness or ability.
✿. Ahliyyah is a phrase that states a person an expert to do a job. This
expression implies that the person has the ability and skills to carry out
such work
✿. Technically: (in Usul Al Fiqh) Ahliyyah is the ability and fitness to
acquire rights and exercise them and to accept duties and perform
them
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6. TYPES OF AHLIYYAH
Usul al-Fiqh: Principles of Jurisprudence
✿. This meaning indicates two types of capacity: one based on
acceptance or acquisitions of rights and other on the performance
of duties.
✿The capacity for acquisitions (of rights) and the capacity for
execution or performance of duties
Ahliyah
Ahliyah al-wjub (Capacity for
acquisitions of rights)
Ahliyah al-ada (Capacity for execution)
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7. AHLIYYAH AL-WUJUB
Usul al-Fiqh: Principles of Jurisprudence
✿. Ahliyyah al-wujub: “it refers to the capacity of a person to receive
rights and obligations”.
✿. The basis (manath) for the existence of this capacity is the attribute of
being human or natural person (insaniyyah)
✿. This form of capacity is possessed by each human being irrespective
of his being a mukallaf
✿. All human beings men and women, both fetuses (still in his mother's
womb alive), infants and baligh, crazy or sane, sick or healthy in terms
of his humanity he is ahliyatul wujub.
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8. AHLIYYAH AL-WUJUB
Usul al-Fiqh: Principles of Jurisprudence
✿. Ahliyyathul wujub may not be complete or may be deficient in some
respects
✿. Therefore, jurist has classified Ahliyyathul wujub as follows
Ahliyah al-
wijub
Ahliyah al-wjub al-Naqisa
(Deficient Capacity for acquisitions)
Ahliyah al-wujub al-Kamilah
(Complete capacity for acquisitions)
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9. AHLIYYAH AL-WUJUB AL-NAQISAH
Usul al-Fiqh: Principles of Jurisprudence
✿. Deficient capacity implies that only some rights are established and
no obligations are imposed on it.
✿. Because of some deficit (shortfall) found
✿. It is established for a fetus (Janin).
-The reason is that fetus is considered part of the mother in some
respect and also considered as separate human being
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10. AHLIYYAH AL-WUJUB AL-NAQISAH
Usul al-Fiqh: Principles of Jurisprudence
• Janin (Fetus): is entitled to certain essential, beneficial rights:
o Freedom fro slavery
o He is also entitled to receive his share of inheritance
o He is also entitled to receive his share in a will (wasiyyah) bequest.
o He is also entitled to receive his share in waqf.
o Parentage (nasab)
• But a fetus is entitled to these rights only when it is born alive.
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11. AHLIYYAH AL-WUJUB AL-NAQISAH
Usul al-Fiqh: Principles of Jurisprudence
• Janin cannot be liable for the rights which need to have
acceptance
• Such as contract
• Janin (Fetus): cannot be made liable for the satisfaction of rights
owed to others
• A purchase made by the would be wali (guardian) on behalf of the
janin cannot make the janin liable for the payment of price
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12. Ahliyyah al-Wujub al-Kamilah
Usul al-Fiqh: Principles of Jurisprudence
• Ahliyyah al-Wujub al-Kamilah, or complete capacity for acquisition, is
found in a human being AFTER HIS BIRTH AND BEFORE THE AGE OF
PUBERTY.
• This makes one eligible for the acquisition of all kinds of rights and
obligations.
• In other words, a child possess complete capacity for acquisition of
rights and obligation but until a child attains the age of legal puberty,
though he lacks the capacity for execution.
• Thus, this person has deficient capacity of execution (Ahliyathul Ada)
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13. The stages leading to complete legal
capacity
Usul al-Fiqh: Principles of Jurisprudence
• What are the stages of legal capacity in All four schools?
• What is age of adult (bulugh) in all four schools if the external factors
such as mensuration (hail), or ejaculation dream (Ihthilam) are not
found?
• What do you understand by rushd (maturired) and Mumayyiz
(discriminating minor between harmful and rightful)
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14. AHLIYYAH AL-WUJUB AL-KAMILAH
Usul al-Fiqh: Principles of Jurisprudence
The discriminating minor (child) who did not attained puberty will be
liable by the Shariah only for those obligations that they can meet.
1. Financial transaction
Some financial matters established on his dimmath (liability) though he
doesn't have capacity for execution.
Such as He is liable for maintenance for his wives, and other near relatives,
if he damaged others’ property, payment of Zakath (not in Hanfia school)
and zakath al fithr.
A. Purely beneficial financial transaction
E.X: Acceptance of gift, Sadaqha
Permitted with the permission of Wali
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15. AHLIYYAH AL-WUJUB AL-KAMILAH
Usul al-Fiqh: Principles of Jurisprudence
B. Purely harmful transaction
EX: divorce, manumission (ithq), Charity, loan, Waqf, wasiyyah
prohibited
C. Transaction between profit and loss
Sale, hire, partnership, and other such
Considered valid if ratified by the wali (Hanafi)
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16. AHLIYYAH AL-WUJUB AL-KAMILAH
Usul al-Fiqh: Principles of Jurisprudence
2. Criminal liability
It does not exist on the person who doesn't reach puberty
And the also will not stand in his place criminal offences
However, he is liable for tazeer (warning), and educating and some
kind of punishment according to Hanafee who are more than
seven years old
3. The Ibadath are not obligatory on Sabi since he doesn’t possess the
capacity of execution.
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17. -AHLIYYAH QASIRAH- IMPERFECT CAPACITY
Usul al-Fiqh: Principles of Jurisprudence
✿ . Imperfect capacity is attributed to Slaves and women
The slaves does not posses for right of ownership but he has obligation
of ibadath and for criminal offences
✿ The women
❖ Share in inheritance
❖ Evidence of women
❖ Right to divorce
❖ Diyath
❖ Judicial office (Qaadhi) and being head of state
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18. AHLIYYAH AL-ADA
Usul al-Fiqh: Principles of Jurisprudence
✿ . Ahliyyah al-ada is capability of a human being to issue statement
and perform acts to which the Lawgiver has assigned certain legal
affects.
✿ The basis (manat) for this capacity is intellect (aql) and discretion
(rushd)
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19. AHLIYYAH AL-ADA
Usul al-Fiqh: Principles of Jurisprudence
✿. The principal elements for the capacity of performance (ahliyyah al-ada) are:
- The puberty and
- The intellectual standard that a person has attained. This enables him to
distinguish between useful and harmful, profitable and unprofitable things or
transactions
- discretion (rushd)
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20. Ahliyyah al-ada capacity for execution of
rights and obligation
Usul al-Fiqh: Principles of Jurisprudence
1. Ahaliyathul ada AL kaamilah (Complete capacity for executions)
2. Ahliyathul Adha Al Naqisah (Deficient capacity for executions)
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21. Ahliyyah al-Ada’ al-Kamilah
Usul al-Fiqh: Principles of Jurisprudence
✿. Complete capacity is established for a human being when he/she attains full
mental development and acquires the ability to judge. This state is associated
with the EXTERNAL STANDARD OF PUBERTY.
✿. The principal elements for the complete active capacity are
❖ .the puberty
❖ and the intellectual standard that a person has attained. This enables him
to distinguish between useful and harmful, profitable and unprofitable things
or transactions.
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22. Ahliyyah al-Ada’ al-Kamilah
Usul al-Fiqh: Principles of Jurisprudence
✿. The physical signs indicating the attainment of puberty are the commencement
of wet-dreams in a male, and menstruation in a female.
✿In the absence of this sign, What is the age of majority according to the four
schools
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23. Ahliyyah al-Ada’ al-Kamilah
Usul al-Fiqh: Principles of Jurisprudence
✿. In addition to puberty, the possession of Rushd (discretion, maturity of
action) is stipulated as well. The Qur’anic sanction, to this effect, is as follows:
✿“Make trial of orphans until they reach the age of marriage; if then you find
sound judgment in them, release their property to them; but consume it not
wastefully.” (4:6)
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24. Ahliyyah al-Ada’ al-Naqisah
Usul al-Fiqh: Principles of Jurisprudence
✿. Ahliyyah al-Ada al-Naqisah is assigned to a child who possess some discretion or
to a Ma’tuh who has attained puberty, but yet LACKS COMPLETE MENTAL
DEVELOPMENT. The person who possesses deficient capacity cannot be held
criminally liable.
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25. OBSTACLES TO CAPACITY:
Usul al-Fiqh: Principles of Jurisprudence
✿. There are some factors that may prevent a person from dealing with his own
property.
✿. These factors disqualify a person from concluding a contract, it could be beyond
his power, or within his power.
✿. Obstacles to capacity refer to “a situation where a person is restrained from
dealing with his property”.
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26. Minority (Sighar)
Usul al-Fiqh: Principles of Jurisprudence
✿It is the stage of a human being after the birth and before the age of puberty. A
minor follows his parents or one of them in the matters of Islam. Islamic jurists
maintain that a minor is liable for compensation for property destroyed by him,
for goods and services bought, for maintenance of relatives and also for zakat
according to some.
✿Hanafi School of Thought makes an exception in the case of a Sabi Mumayyiz and
it is a matter of controversy whether the Khitab of Targhih or recommendations
is addressed to him. He is not liable for punishments, but financial transactions
undertaken by him are valid in certain cases.
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27. Insanity (Junun)
Usul al-Fiqh: Principles of Jurisprudence
✿Junun has no effect on Ahliyyah al Wujub, because rights and obligation are
established for and against an insane person, who is deemed liable for Itlaf
(destruction of property), payment of Diyyah and the like.
✿The rationale (Manat) for attribution of such capacity is humanity (Insaniyyah)
and the insane is a human being.
✿Insanity, however, completely negates the Ahliyyah al-Ada because of lack of
reason and intellect. An insane person, therefore, has no liability for worship, or
punishment, and all his transactions are void.
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28. Idiocy (‘Atah)
Usul al-Fiqh: Principles of Jurisprudence
✿. It is a condition in which a person at times speaks like a sane and normal
person while at others he is like a mad man. It is also described as a state in
which a grown-up has the mind of a child. The capacity of an idiot is deemed
equivalent to that of a Sabi Mumayyiz who can be permitted by his guardian to
undertake some transactions.
✿. Where a person is inconsistent in his decisions and behaviours, which may
change from time to time.
✿. His status is the status of a child who could distinguish between good and bad.
✿. He may perform contracts, which are in his interest, without seeking
permission from his guardian.
✿. He could not enter into contracts that are harmful. He may enter into contracts
that fall between these two extremes with the permission of his guardian.
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29. Forgetfulness
Usul al-Fiqh: Principles of Jurisprudence
✿A person is not very careful about things though he has full knowledge of them,
as distinguished from sleep and fainting fits in which such knowledge is lacking.
Forgetfulness does not affect Ahliyyah al-Wujub nor does it affect the capacity for
execution.
✿The legal communication (Khitab), however, becomes operative as soon as the
person remembers. Transactions undertaken by such a person are valid and
enforceable against him.
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30. Safah (Folly)
Usul al-Fiqh: Principles of Jurisprudence
✿Safah refers to a situation where a person’s financial decisions or activities run
contrary to the guidelines of Shariah and reason.
✿A safeh is a person who is wasting or spending his wealth improperly. The
opposite of safah is rushd which refers to the maturity of mind. Rushd is a person
who has the ability to manage his wealth properly and is not involved in
extravagance.
✿Only a court has the power to ascertain that a certain person is a safeh , and once
a person is declared a safeh by a court the judge would become his guardian. The
father or grandfather of a spendthrift person has no right of guardianship over
him.
✿Any commercial transaction made by a safeh could not be executed unless the
judge is satisfied that the transaction is in his favour and approves it.
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31. THERE ARE TWO TYPES OF SAFAH;
Usul al-Fiqh: Principles of Jurisprudence
✿. Those who have become adult but are still safeh. He is not allowed to interfere
with his property. He would be under the supervision of a guardian.
:-According to Imam Abu Hanifah, after a safeh reaches the age of 25 years his
property should be returned to him.
:-Reason: because when a person reaches this age he would attain maturity of
mind.
:-According to The majority of the Fiqh Schools the prevention may continue
until such an age at which a person may attain maturity of mind.
✿. Those who after attaining maturity of mind becomes safeh.
:-Imam Abu Hanifa :no prevention could be imposed on such persons.
:-The majority of the Fiqh Schools and Abu Hanifah’s own disciples Imam Abu
Yusuf and ImamMuhammad Al-
Shaibani: he may still be declared sefih even if he has attained maturity
of mind; if it is proven that he
misappropriates his property or spends it in ways that are unlawful or improper.
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32. Death Illness (Marad al-Maut)
Usul al-Fiqh: Principles of Jurisprudence
✿. Maradul Maut has no effect on the capacity for acquisition or on the
capacity for execution and it is, in fact, a condition of Taklif, because it is
the capacity to perform and act that is affected here and not the capacity
to understand it.
✿. Refers to an illness which will lead a person to strong probability of
death. This usually happens when the disease gets worse from day to day
until death ensues.
✿. Also includes situations in which people fear death, although they may
not be sick, as when a person is sentenced to death.
✿. A person who suffers from Marad al-Maut may make certain contracts:
waqf , charity, or make gift of his property to some of his heirs or non-
heirs.
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33. Death Illness (Marad al-Maut)
Usul al-Fiqh: Principles of Jurisprudence
✿ . Some of his dispositions may cause injustice to his legal heirs and the
creditors.
✿ In order to protect the interests of his legal heirs and creditors Islamic
law, applying the rule of wasiyyah, has limited his dispositions to one-
third of his wealth.
✿ For example, a person who suffers from mortal sickness may give a
part of his wealth as a gift to one of his heirs. After his death if the
other heirs do not agree, the gift is not valid. A gift to a non-heir is
valid and does not need the approval of the heirs provided the gift
should not exceed one-third of the asset.
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34. Intoxication
Usul al-Fiqh: Principles of Jurisprudence
✿ . Intoxication prevents a person from distinguishing what is good and bad or
beneficial and harmful.
✿ . Intoxication could either be caused voluntarily (person choice and within his
control) or involuntarily (beyond one’s control).
1. Voluntary intoxication intoxicants: could be caused by wilfully taking
2. Involuntary intoxication: could be caused by consuming. certain
medicines or taking anaesthetic or when a person is forced to take
intoxicants.
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35. Intoxication
Usul al-Fiqh: Principles of Jurisprudence
✿. There are two views on the validity of a contract entered into by a person who
intentionally takes intoxicants:
I. The Malikis and Ibn Taymiyyah and Ibn Qayyim argue that all contracts entered
into by such a person are not valid.
Reason: intoxication whether voluntarily or involuntarily takes away a
person’s rational power to make a proper decision.
II. The majority of the Fiqh Schools argues that contracts entered into by a person
intoxicated involuntarily are not valid. But if intoxication is caused wilfully, the
contracts entered into are valid.
Reason: this could serve as a sort of punishment to a person who
voluntarily weakened his rational power.
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36. Duress
Usul al-Fiqh: Principles of Jurisprudence
✿ . It refers to a situation where a person is forced against his consent to enter into a
contract which if left alone, he would not have entered into.
✿ . For example: when a person is threatened with death, or the deprivation of his limbs,
or severe beating, which may result in his death.
✿ . This type of coercion destroys consent and invalidates a person’s choice. Duress does
not destroy the capacity of a person but destroys his consent.
✿ . Conditions:
1-The one who uses force is capable of implementing his threats.
2-The person forced is certain that the one who uses force would implement his
threat.
3-The nature of threat is such that it really endangers life.
4-The threat is immediate.
5-The force is used for an unlawful purpose.
✿ . To the majority the contract is void
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37. References
1. Nyazee, I.A.K., (2006). Islamic Jurisprudence (Usul al-Fiqh). Adam Publishers &
Distributors: New Delhi - India.
2. Quadri, A.A., (2007). Islamic Jurisprudence in the modern world. Adam Publication &
Distributors: New Delhi- India.
3. Kamali, M.H. Principles of Islamic Jurisprudence. (Cambridge: The Islamic Texts Society,
2003) 3rd edition [ISBN 9780946621828].
Usul al-Fiqh: Principles
of Jurisprudence
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38. Usul al-Fiqh: Principles of Jurisprudence
Thank You
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