1. The document discusses the legal concepts of mahkum alaih (the subject of rulings) and ahliyyah (legal capacity) in Islamic jurisprudence.
2. A mahkum alaih is a person who is subject to legal rulings and obligations. They must possess the ability to understand rulings either independently or with assistance.
3. Ahliyyah refers to a person's legal capacity and comprises two types - ahliyyah al-wujub which is the capacity to acquire rights, and ahliyyah al-ada which is the capacity to execute obligations. Various conditions and stages are discussed regarding establishing full legal capacity.
Understanding Legal Rights and Obligations: Legal capacity refers to a person's ability to have rights and obligations recognized and enforced by the legal system. By studying legal capacity in Usul al-Fiqh, students gain insights into the criteria that determine who has the capacity to enter into contracts, engage in transactions, inherit property, and fulfill legal responsibilities. This understanding is vital for individuals seeking to navigate legal systems and exercise their rights within the framework of Islamic Law. Application of Islamic Principles: Usul al-Fiqh provides students with the foundational principles and methodologies for deriving legal rulings in Islamic Law. By studying legal capacity, students learn how these principles are applied to determine the legal status and capacity of individuals within the Islamic legal framework. This knowledge allows students to analyze and interpret legal texts, extract principles, and apply them to contemporary legal issues concerning legal capacity. Protection of Vulnerable Individuals: The study of legal capacity in Usul al-Fiqh encompasses discussions on mental capacity, minority (age-based) capacity, and other factors that impact an individual's ability to exercise their rights and fulfill obligations. Understanding legal capacity allows students to explore the mechanisms and safeguards in Islamic Law for protecting the rights and interests of vulnerable individuals, such as minors or individuals with mental disabilities. This knowledge is crucial for legal practitioners, judges, and policymakers to ensure the fair and just treatment of all members of society. Guardianship and Representation: Legal capacity in Usul al-Fiqh also delves into the concept of guardianship and representation. Students learn about the roles and responsibilities of legal guardians, such as parents or appointed individuals, in managing the affairs of those with limited or restricted legal capacity. This knowledge is essential for professionals working in family law, inheritance law, or any field that involves representing the interests of individuals who may require legal support or representation. Comparative Legal Analysis: Studying legal capacity in Usul al-Fiqh allows students to compare and contrast Islamic legal principles and frameworks with other legal systems. By examining legal capacity from a comparative perspective, students can appreciate the similarities and differences between Islamic Law and other legal systems, which enhances their understanding of legal concepts and broadens their legal knowledge base.
Understanding Legal Rights and Obligations: Legal capacity refers to a person's ability to have rights and obligations recognized and enforced by the legal system. By studying legal capacity in Usul al-Fiqh, students gain insights into the criteria that determine who has the capacity to enter into contracts, engage in transactions, inherit property, and fulfill legal responsibilities. This understanding is vital for individuals seeking to navigate legal systems and exercise their rights within the framework of Islamic Law. Application of Islamic Principles: Usul al-Fiqh provides students with the foundational principles and methodologies for deriving legal rulings in Islamic Law. By studying legal capacity, students learn how these principles are applied to determine the legal status and capacity of individuals within the Islamic legal framework. This knowledge allows students to analyze and interpret legal texts, extract principles, and apply them to contemporary legal issues concerning legal capacity. Protection of Vulnerable Individuals: The study of legal capacity in Usul al-Fiqh encompasses discussions on mental capacity, minority (age-based) capacity, and other factors that impact an individual's ability to exercise their rights and fulfill obligations. Understanding legal capacity allows students to explore the mechanisms and safeguards in Islamic Law for protecting the rights and interests of vulnerable individuals, such as minors or individuals with mental disabilities. This knowledge is crucial for legal practitioners, judges, and policymakers to ensure the fair and just treatment of all members of society. Guardianship and Representation: Legal capacity in Usul al-Fiqh also delves into the concept of guardianship and representation. Students learn about the roles and responsibilities of legal guardians, such as parents or appointed individuals, in managing the affairs of those with limited or restricted legal capacity. This knowledge is essential for professionals working in family law, inheritance law, or any field that involves representing the interests of individuals who may require legal support or representation. Comparative Legal Analysis: Studying legal capacity in Usul al-Fiqh allows students to compare and contrast Islamic legal principles and frameworks with other legal systems. By examining legal capacity from a comparative perspective, students can appreciate the similarities and differences between Islamic Law and other legal systems, which enhances their understanding of legal concepts and broadens their legal knowledge base.
Explain about How the Quran is used as the first source of Syariah, referring to Principles of Islamic Jurisprudence book by Prof. Mohammad Hashim Kamali,
3rd edition (2005)
Explain about How the Quran is used as the first source of Syariah, referring to Principles of Islamic Jurisprudence book by Prof. Mohammad Hashim Kamali,
3rd edition (2005)
Acts and Obligation (Islamic jurisprudence II)EHSAN KHAN
ACTS AND OBLIGATIONS
Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists.
ISLAMIC DIVINE LAW (SHARI’AH)
Structuring the Life of Man by Divine Law
The Five Ruling Values (The Five Ahkam) ﺍﻟﺨﻤﺴﺔ ﺍﻷﺣﻜﺎﻡ
Mashhad Al-Allaf
What is a Hukm (a legal rule)?
Who is Legally and Morally Obligated (Mu.kal.laf)?
The Nature of Allah's Commands
The Five Categories of Ruling Values:
1. Wajeb or Fardh (Required, Obligatory)
2. Mandoob (Recommended)
3. Mubah (Permitted but Morally Indifferent)
4. Makrooh (Discouraged or Abominable)
5. Haram (Forbidden or Prohibited)
ACCREDITED PERSONS UNDER THE MENTAL HEALTH ACT 2007 IN THE CONTEXT OF ADMINIS...Dr Ian Ellis-Jones
Copyright Ian Ellis-Jones 2012. All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
JUVENILE CURFEWSIssues.Definitions of terminologies used.C.docxDIPESH30
JUVENILE CURFEWS
Issues.
Definitions of terminologies used.
Conclusions and inferences made on the issue.
Evidence and facts on conclusions made
Analysis of evidence used to make conclusions
1
Placing a juvenile curfew or specific rules that children under the age of 18 years of age has been a long going argument and is a topic with great opposing views. In this presentation we will look at the issues, go over the definitions for some of the common terminology and look at both sides of the arguments with supporting evidence for both.
1
The Argument: Should there be a legal curfew and driving restrictions to those under 18?
Definitions
legal curfews: laws that legally limit or prohibit ones ability and right to enjoy certain state of affairs as he was used to.
juvenile curfews: are passed in state and local levels to limit or prohibit persons under 18 from enjoying certain privileges.
restriction: to deny access to or prohibit.
issue is very controversial as its constitutionality is often contested under 1st, 4th,5th, 9th and 14th amendments that protect individuals fundamental rights
2
The first term is legal curfews: laws that legally limit or prohibit ones ability and right to enjoy certain state of affairs as he was used to. Next is juvenile curfews: are passed in state and local levels to limit or prohibit persons under 18 from enjoying certain privileges. The term restrictions is to deny access or prohibit. This leads to questions of the constitutional rights of individuals covered under the 1st, 4th, 5th, 9th and 14th amendments.
2
Amendments
1st: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
4th: “enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.”
5th: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
3
Cornell Law
The first would cover if a person under the age of the ...
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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.
2
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)
3
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
4
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
5
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)
6
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.
7
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)
8
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
9
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.
10
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
11
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)
12
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)
13
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
14
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)
15
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.
16
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
17
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)
18
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)
19
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)
20
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.
21
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
22
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)
23
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.
24
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”.
25
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.
26
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.
27
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.
28
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.
29
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
36
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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