Islamic Online University
Bachelor of Arts in Islamic Studies
STUDENT NAME: N’MAH SILLAH
STUDENT ID: ST10077451
COURSE NAME/CODE: FIQH (FQH301)
ASSIGNMENT QUESTION: 2. Discuss whether there are essential differences between legal capacity and criminal capacity?
Include in your discussion the following
1. What is Legal Capacity?
2. What is criminal capacity?
3. Criminal and legal capacity: are they one and the same thing
4. Explain the link between usool fiqh and the study of legal capacity: Why is the topic legal capacity dealt with in usool fiqh?
ATTEMPT COUNT: 1
All praise is due to Allah the Lord of the Worlds, we praise Him and we seek his help and ask His forgiveness. We seek refuge with Allah from the evil of ourselves and from the evil results of our actions. I testify that Allah alone is worthy of worship and that Muhammad is His slave and final Messenger. May Allah’s peace and blessings be upon him, his family, his companions, and All those who fellow His foot print until the last day. Ameen! Islamic law commonly known as Sharia is not in any way meant to make life difficult for human. Rather, it’s meant to controls, rules, and regulates all public and private affairs. It has regulations for personal hygiene, sexual conduct, and elements of child rearing which are all beneficial to the human. It also prescribes specific rules for religious matters, such as prayers, fasting, zakat, and several others. As Allah says “O ye who believe if ye fear Allah He will grant you a criterion (to judge between right and wrong), remove from you all evil deeds. And forgive you, for Allah is the Lord of grace unbounded. Surah Al-Anfal verse 29.
The verse has clarified that Allah’s shariah is a solution for mankind in their daily affairs. And Islamic shariah does not rely upon one source for its broad knowledge base. Therefore it has several sources from which to draw its guiding principles.
Legal capacity: in shariah, legal capacity can be defined as the ability an individual has to exercise rights and responsibilities in one’s affairs.Technically, Muslim jurists have referred to it as “The eligibility of a person to establish right for and obligation upon himself”.Generally, every Muslim is inherently endowed with legal capacity, to some extent, save for minors, lunatics and those in sleep. The Prophet was reported to have said: “There are three (persons) whose actions are not recorded: A minor until he reaches puberty, a lunatic until he regains his reason and a sleeper until he awakes.”Narrated by the authors of Sunan and classed as Saheeh by al-Albaani in al-Irwa’, No. 297. furthermore, legal capacity also involves privileges, inherently enjoyed and exercised by an individual, and it does not only covers the potential of an individual to acquire rights and obligations ,but also the capacity to exercise, execute and perform such rights and duties . It is primarily divided into two types: 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’.
Criminal capacity: can be defined as the violation of the rights of others, by an individual with sound mental and legal ability, and according to some Muslim jurist’s they classified crimes on the basis of the right violated. Islamic shariah takes into consideration three aspects with regards to crime (wrong doings):
Hudud (transgressing the limits of Allah),which leads to prescribed and mandatory penalty
Ta’zir (correction of the culprit) where the penalty or punishment lies with the judge and might vary depending on the circumstance.
Qisas (retribution) which involves equality in punishment ,which also depends on the circumstance , wherein either the victim or the relative of the victim might waive such retribution by accepting blood money, any financial compensation or waiving the rights altogether as the case may be.
The aims of Islamic criminal law should be understood in terms of the protection of interests.Thus, punishment must involve working with the offender in such a just manner. Moreover, punishments should serve as deterrents to potential offenders.
Criminal and legal capacity
As we have learnt from the definitions of the two, we have notice that they are almost the same, reason been in executing the legal and criminal capacity two things involves (legal reason) as it is only upon full development of one’s intellectual abilities that one can understand the shariah of the (Allah) Lawgiver, and have the discretion to act voluntarily.
Linking usool fiqh and the study of legal capacity, and why legal capacity is dealt with in usool fiqh. Usool al-Fiqh as the body of knowledge which claries various principles pertaining us in understanding laws of Allah in the Qur’an and the Sunnah can only is understood through the methodology of fiqh extraction. It through the study of usool fiqh one could understands legal capacity. Usool has described a complete system of Legal capacity, and has addressed it well, in manners which address the honor as well as accountability of the human. taking legal capacity there are certain circumstances that must be satisfied before the law. The rules governing the process of ranking, reconciliation, and abrogation when working with evidences are a major concern of usool al-fiqh in determining legal capacity and this is an area wherein only the most skilled of scholarship can show itself, in their interpretation and proper applications.
To conclude, it can be stated that it is through legal capacity of a person that it is determined whether law is applicable to his/her acts or not. If a person’s legal capacity is defective one, he/she will not be fit for application of law to his/her acts. The reason is that application of law is only possible to his/her acts when his/her legal capacity is not defective one. Usool al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. Usool al-fiqh gives us a clear understanding of the language of the Quran and sunnah, and how to use the various types of evidences in a manner in which they serve as a guide to our Islamic practices and belief, we also come to understand how scholars construct their positions through the use of evidences found in the Arabic language or in the Qur’an and Sunnah. Moreover usool al-fiqh
helps us to develop the proper skills that allow us to have a systematic understanding that will be necessary for proper comprehension of the Qur’an and the Sunnah, and also necessary tools for engaging in ijtihaad .https://www.linkedin.com/pulse/legal-capacity-al-ahiliyyah-under-islamic-law-shariah-abdul-cife-http://www.oxfordislamicstudies.com/print/opr/t236/e0170 (Abdel Haleem, Muhammed, Adel Omar Sharef, and Kate Daniels, eds.Criminal Justice in Islam: Judicial Procedure in the Shari?ah. London, 2003).
SUBHANAKA ALLAHUMA WABIHAMDIKA. ASH-HADU AN LAILAHA ILA ANTA. ASTAKH FIRUKA WANATUBU ILAIKA.