The Convention on the Rights of Persons with Disabilities and the Islamic Tradition: The question of legal capacity in focus

Abstract

Legal capacity of persons with mental disabilities was a contentious issue during the process of drafting the Convention on the Rights of Persons with Disabilities. The Arab Group, consisting of Muslim-majority countries, in the United Nations expressed reservations about the formulation of the Article related to this issue. However, their reservations were dismissed because they arguably had to do with language-specificity. The author revisits these deliberations and argues that the reservations of the Arab countries have to do with religious aspects rooted in the Islamic tradition. By ignoring these religious aspects, the Disability Convention missed a rich source of wisdom provided by a world religion like Islam. On the other hand, the innovative insights provided by the Disability Convention can be of value to improve contemporary discussions on legal capacity within the Islamic tradition. Unlike the previous studies, which either focused on the approach of the Disability Convention or that of the Islamic tradition, this study examines both approaches and highlights the points of agreement and disagreement and finally proposes suggestions for narrowing the existing gap between these two approaches.

Keywords:

• Islam
• mental health
• religion
• dependency
• inclusion

The Convention on the Rights of Persons with Disabilities (hereinafter CRPD or Disability Convention) is the product of long-term advocacy efforts spanning almost two decades. The formal process of negotiation and drafting took about five years, from 2001 to 2006. Various stakeholders were involved in this process including individuals, nongovernmental organizations (NGOs), and governmental representatives. What distinctive about this process was the formal and active involvement of organizations representing and comprising persons with disabilities. On December 13, 2006, the United Nations (UN) General Assembly adopted the CRPD by consensus as the first UN international human rights treaty of the 21st century. The Disability Convention managed to achieve the highest number of signatories on an opening day (82 in total) throughout the history of the UN. By June 2014, the Disability Convention was already signed by 158 countries and ratified by 147 States Parties, as well as the European Union (Kanter, 2006; Kelly 2015; Szmukler et al. 2014).

Part I: Legal capacity within the context of the UN disability convention

The distinctive and pioneering character of the Disability Convention have been highlighted in different ways. To start with, the CRPD was presented as the first binding international treaty dedicated to protecting the rights of one of the world’s largest and most vulnerable minorities. There are at least 650 million persons with disabilities worldwide, which is equal to about 10% of the world’s population (Kanter, 2006; Sabatello & Schulze, 2013).¹ The adoption of the CRPD was hailed by the then United Nations Secretary General Kofi Annan as, “The dawn of a new era—an era in which disabled people will no longer have to endure the discriminatory practices and attitudes that have been permitted to prevail for all too long” (Lewis, 2010, p. 101). It can be argued that most of the rights included in the CRPD are protected by other UN treaties and make already part of the legacy of human rights theory. What is revolutionary about the CRPD, however, is that it framed these rights in a way that was specific to persons with disabilities, who are no longer viewed as “objects” requiring charity and care but as human “subjects” enjoying rights on an equal basis with all other humans (O’Mahony, 2012; Szmukler et al., 2014). Also, the scope of the rights covered by the Disability Convention seems to be unprecedentedly wide and vast. The list of the guaranteed rights covers most aspects of daily life in which persons with disabilities, as minors or adults and as men or women, experience difficulties throughout their lifespan. Just to mention a few examples, one can refer to the inherent right to lead life on an equal basis with others, protection from discrimination in marriage and parenthood, having access to reproductive and family planning education and means, owning or inheriting property and controlling one’s financial affairs, and having access to bank loans, mortgages, and other types of financial credit (Kanter, 2006; O’Mahony, 2012).

Paradigm shift discourse on legal capacity

The term paradigm shift has become the catchphrase frequently used to express the genuinely revolutionary character and the transformative potential of the Disability Convention. Some authors argued that the specificities of the paradigm shift promoted by the CRPD are primarily spelled out in Article 1 of the CRPD,² in the list of its guiding principles,³ and also in its underlying set of values that calls for adopting a worldview of persons with disabilities as active subjects of human rights and dignity (Kanter, 2006; Lewis, 2010; O’Mahony, 2012).

This paradigm shift could happen, first and foremost, as a consequence of moving away from the medical model, which has been associated with disability for a long time but which has also been the focus of much criticism, to the social model of disability, which was undeniably influential in the drafting of the CRPD. According to the medical model, persons with disabilities are viewed as sick and in need of a cure. The focus of this model is the individual and the underlying approach is to use medicine to “treat” such an individual’s disability. On the other hand, the advocates of the social model, or human rights model, view persons with disabilities as rights holders and full-fledged members of their own societies. According to the social model, these persons are often more disabled by the physical and attitudinal barriers created by societies than by their own physical or mental condition. Hence, disability is seen as a consequence of a disabling environment, which is organized to meet the needs of “normal” persons but oppresses persons with disabilities through societal attitudes and actions (Kanter, 2006; O’Mahony, 2012).

At the heart of this paradigm shift lies the question of legal capacity. Within the medical model, there is no crucial role, if any, for the legal capacity of persons with disabilities. For instance, in this model, medicine should be used to “treat” persons with mental health conditions, whose legal capacity will hardly be considered, through treatments such as electroconvulsive therapy, psychosurgery, and pharmacological interventions. However, the social model focuses on the interaction between the individual and society, where the priority will be addressing social barriers such as discrimination, exclusion, and prejudice, which all prevent persons with disabilities from exercising their legal capacity, through empowerment and establishing the normality of disability (O’Mahony, 2012). This position is spelled out in Article 12 of the CRPD, entitled “Equal Recognition before the Law,” which includes the following two items:

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (Kanter, 2006).

This Article was seen as a paradigm shift in understanding the right to legal capacity. Before drafting the CRPD, the centuries-old substituted decision-making system, usually implemented through guardianship, conservatorship, deputyship, wardship, and the like, was dominant. Within this system, once the decision-making capability of someone is considered impaired, then someone else will take decisions on behalf of this “incapacitated” person. This system is closely linked to the previously mentioned medical model because legal capacity under this model is usually denied because of the diagnosis made by medical experts. As a more human rights–friendly and forward-looking alternative, the CRPD introduced the supported decision-making system. The main premise of this alternative system is that all human beings are entitled to legal capacity although there may be differences and degrees in their capacities. Whenever some persons in general, not just those with disabilities, lack specific skills, they should be provided with the necessary support to help them make their own decisions rather than supplanting them through the appointment of proxies. Against this background, one of the distinct attributes of the CRPD is that it is the first international treaty to recognize that all persons, including those with disabilities, should enjoy legal capacity on an equal basis in all areas of life. It was argued by various academics and disability rights activists that without the recognition of full legal capacity of all persons with disabilities, not only would the paradigm shift of the CRPD be sacrificed but also the whole range of rights and principles of the Convention would be rendered meaningless. This also explains the unequivocal position adopted in April 2014 by the UN Committee on the Rights of Persons with Disabilities in the General Comment (GC) No. 1. The GC, which is an authoritative interpretation of Article 12, demands that supported decision-making systems replace all forms of substituted decision-making systems, such as guardianship and compulsory mental health treatment (Arstein-Kerslake, 2016; Dhanda, 2007; Kanter, 2006). As to be outlined subsequently, a rigorous reasoning was developed by the advocates of this position to defend this formulation of Article 12 and its later strict interpretation, which stressed the unqualified recognition of the legal capacity of persons with disabilities, with no reference to any possible exception.

The advocates of the supported decision-making system argued that denying the legal capacity of persons with disabilities, only because of their disability, is by default not serving their best interests, even if it was sometimes claimed otherwise. Once the person is labeled as incompetent and his or her legal capacity to fulfill certain life activities is denied, personal growth will automatically be hindered. Making decisions on other people’s behalf (i.e., substituted decision-making system) has serious pedagogic and antitherapeutic effects. By not allowing persons with disabilities to exercise their rights in certain contexts, these individuals gradually lose their functional ability to exercise rights in those respective areas and they can hardly recover their decision-making capacities under the guardianship system. Additionally, individuals are sometimes denied significant rights under the pretext of unfounded claims of incompetence, although they may be functionally capable of deciding on them (e.g., consent to medical treatment, voting, marriage, work, litigation, participation in adoption proceedings). In practice, most incapacitations result in plenary guardianship, which eventually means that the person in question will be denied the legal capacity in all areas of life (Dhanda, 2007; Fiala-Butora & Scior, 2016).

The other key argument advanced by the proponents of the supported decision-making system is broader than just serving the best interests of persons with disabilities. This argument relates more to the worldview that should dictate our perception of disability and the inclusion of persons with disabilities in society. The Indian human rights academician and activist, Amita Dhanda, spoke about clashing perspectives, such as autonomy versus paternalism and planning for the future versus living in the present, in which the former is premised on the conviction that all persons have legal capacity and the latter contends that legal capacity is not a universal human attribute. Whereas the former recognizes the existence of multiple intelligences, the privileging of cognitive faculties is the norm adopted by the latter perspective. Human rights treaties and conventions are usually characterized by a strong claim of universality for the principles and values they call for, although this claim is not always consensually recognized. This is exactly the case with the supported decision-making system, whose advocates wanted to make a case for its universality through Article 12 of the CRPD. Amita Dhanda (2007) summed up this position in her statement: “The article on legal capacity was challenging some deeply held beliefs on human choice and freedom. It was a foundational assertion of the right to be human. Thus, the reach of this article will determine how universal is the reach of the Convention on the Rights of Persons with Disability.”

However, this point proved to be controversial during the different processes of drafting, negotiating, adopting, and even implementing the Disability Convention. It is clear that the supported decision-making system is not (yet) universally conceded (Dhanda, 2007, 2012). The contested character of this claim of universality will be explored subsequently with specific reference to Muslim-majority countries and to the Islamic tradition that is an integral part of the religio-cultural and moral world of these countries.

CRPD deliberations on legal capacity: Language as disguise?

In response to the previously mentioned formulation of Article 12, which touches on the legal capacity of persons with disabilities, Arab countries together with the African Group, Russia, and China proposed incorporating the following footnote, “In Arabic, Chinese and Russian, the term ‘legal capacity’ refers to ‘legal capacity for rights’, rather than ‘legal capacity to act.’” The point here is to differentiate between two types of legal capacity. Legal capacity for rights means the fitness of a person to be subject of legal relations and thus refers to an individual’s status within a given legal system. On the other hand, legal capacity to act means aptitude for the exercise of rights and thus refers to the power to perform acts that have a legal effect. According to the proponents of this distinction, the first type of legal capacity applies indiscriminately to all persons with disabilities whereas the second type does not. They argued that the reference to legal capacity in Article 12 should mean the legal capacity for rights rather than the legal capacity to act (Dhanda, 2007; Kanter, 2006).

This position adopted by Arab countries was officially communicated by the representative of Iraq, in his capacity as Chair of the Arab Group at the time, in a letter directed to the Chairman of the CRPD Ad Hoc Committee. This position, the Iraq representative explained, is in accordance with the national laws and legislations of these States.⁴ In response, the Ad Hoc Committee decided, without a vote, to take out the proposed footnote and thus the final draft that reached the floor of the UN General Assembly did not include this footnote. The main reservation against the proposed footnote was that it was an attempt to make a substantive change to the content of Article 12, disguised in a linguistic reservation. That is why the representative of Finland, in his capacity as Chair of the European Union Group, also communicated a letter to the Chair of the Ad Hoc Committee in response to the letter introduced by the Arab Group. He indicated that the term legal capacity has universal meaning whose scope cannot be restricted because of claims about language.⁵ As for any possible genuine linguistic questions on the concept of legal capacity, the Chair of the Ad Hoc Committee said that they would be resolved by adopting the language used in the Convention on the Elimination of Discrimination against Women. Any further nuances in translation, the Chair added, would be worked out in time and would depend on State practice (Dhanda, 2007; Kanter, 2006).

The main thesis of this study is that the reservation introduced by the Arab Group is not linguistic but religious in nature. The representative of Syria, from the Arab Group, already alluded to this point by saying that “Her delegation had joined the consensus on the understanding that none of the Convention’s provisions would contradict her country’s religion or culture and that its implementation would take culture and background into account” (Kanter, 2006, p. 303). Although it was never outlined in the CRPD deliberations, examining the Islamic religious background of this reservation is indispensable so that one can understand the true nature of this reservation. On the other hand, it seems that those who wrote on Islam and disability and touched upon the question of legal capacity are not aware of the CRPD deliberations. These authors usually mention the distinction between “legal capacity for rights” and “legal capacity to act” as one of the human-rights-friendly and progressive positions advocated by Islam toward persons with disabilities. Against this background, the following part of this article will be dedicated to explaining the discussions on legal capacity within the Islamic tradition.

Part II: Legal capacity within the context of the Islamic tradition

Deeply rooted concepts in the Islamic tradition

The previously mentioned position adopted by the Arab Group in the UN reflects deep-seated concepts and principles in the Islamic tradition. The entry “legal capacity” in the standard reference Encyclopedia of Islam (third edition) starts as following: “Legal capacity (ahliyya), according to classical Muslim jurists, is of two kinds: capacity of obligation (ahliyyat al-wujūb) and capacity of execution (ahliyyat al-adāʾ). Capacity of obligation refers to the potential of any human being to possess legal rights and obligations … . Capacity of execution requires the possession of mental discernment” (Arabi, 2011). The same information is also recorded in another standard reference, namely al-Mawsūʿa al-Fiqhiyya (The Juristic Encyclopedia) (Wizārat al-Awqāf, n.d., vol. 7, pp. 151–154). This means that legal capacity is not perceived as an indivisible whole in the Islamic tradition but it is divided into two main categories and each category has its own scope. As shown in the aforementioned discussions on Article 12 and as to be detailed subsequently, these opinions are not just part of premodern⁶ discussions among classical Muslims jurists. On the contrary, they still play crucial role in contemporary discussions on legal capacity. The striking absence of details about this religious dimension in the reservations expressed by the Arab Group about Article 12 can be explained in various ways. It is possible that these diplomats, who are engaged in an international human rights discourse, mainly characterized by areligious or even secular overtones, would feel uneasy about interpolating religious convictions in this discourse. The religious-tinted discourse on human rights, their colleagues in the UN could argue, would make it specific to certain cultures or religions and thus the claim of universality of these rights would be undermined. Additionally, limiting the scope of legal capacity for certain groups of people on religious grounds would raise questions about the compatibility of these religious traditions with the ethical norms of “our modern time”. As expressed in the subtitle of her study on legal capacity, Amita Dhanda, who participated in the aforementioned CRPD deliberations, argued that such an approach is actually a “stranglehold of the past.” She put it boldly by saying, “Fundamentally, there are two choices before humankind. One recognizes that all persons have legal capacity and the other contends that legal capacity is not a universal human attribute” (Dhanda, 2007, p. 457). In his posthumous encyclopedic work, Majnun: Madman in Medieval Islamic Society, one also notices Michael Dols’ awareness of these supposed “stranglehold of the past” concerns. By the beginning of the chapter dedicated to the ramifications of legal capacity for persons with mental disabilities in Islamic law (fiqh), Dols (1992) holds that “Medieval Islamic legal theory regarding insanity should be placed in its context of legal traditions both before and contemporary with it, rather than in isolation” (p. 425).

At the opposite pole of this timid stance toward the premodern Islamic perspective on legal capacity, other voices outspokenly defended the premodern position in the Islamic tradition and viewed this very perspective in a diametrically different way. For them, the premodern Islamic approach to persons with disability in general and this perspective on legal capacity in particular are not only relevant to our modern time but do much better service to persons with disabilities than other self-acclaimed human rights–friendly or modernized approaches. This position usually dominates in the works on Islam and disability published in Arabic (Kīlānī, n.d.; Quḍāt, 1992;). Sarī al-Kīlānī (Faculty of Sharia, University of Jordan), who wrote his PhD dissertation at al-Azhar University in Cairo on the juristic rulings pertinent to persons with disabilities, is a good representative of the advocates of this position (Kīlānī, n.d.). In an article dedicated to examining the opinions of classical Muslim jurists on the legal capacity of persons with disabilities, Kīlānī fiercely defended the thesis that the Islamic approach to the legal capacity of persons with disabilities demonstrates the singularity, primacy, and superiority of the Islamic religio-ethical system (Sharia) in comparison with any other modern approach, especially as far as the human dignity of this group of persons is concerned (Kīlānī, 2002–2003).⁷ Against this background, one can safely argue that the division of legal capacity into capacity for rights and capacity to act is deeply seated in the Islamic tradition and continues to play a significant role in contemporary discussions as well. This does not negate the fact that these contemporary scholars and their premodern peers recognize that certain aspects in the Islamic tradition are fixed and eternal, called in the Islamic discourse thawābit, whereas a great number of issues can be judged in different ways, named mutaghiyyrāt, depending on the changeable context of these issues. To put the key concept of legal capacity into the right context within the Islamic tradition, the rationale of legal capacity will be expounded subsequently in the light of the broad Islamic worldview of the human being.

Legal capacity (ahliyya) as integral part of the Islamic worldview

Addressing the ethical questions related to the concept of legal capacity cannot be severed from the overall Islamic worldview (Weltanschauung), which positions human beings in relation to God, the Creator of all creatures, and the whole universe. By consulting the foundational Scripture of Islam, namely the Qurʾān, both premodern and contemporary Muslim religious scholars could sketch the main features of this Weltanschauung. Because of the limited space available, focus here will be on those features that have relevance to the question of legal capacity.

Within the broad Islamic worldview, man is perceived as God’s noble creature who has a special relationship with the Creator, God. This relationship is premised on a sort of unwritten contract or covenant (mithāq) whose purport is referred to in the following Qur’anic verse “And [mention] when your Lord brought forth from the Children of Adam—from their loins—their descendants and made them testify of themselves [saying to them]: Am I not your Lord? They said: Yes, we have testified. [This was] lest you should say at the Day of Resurrection: Indeed! Of this we were unaware” (07:172). Some Qurʾān exegetes interpreted the verse literally and argued that it means that God brought the descendants of Adam together in a single primordial moment and that both the divine address to these descendants and their response were verbal at that moment. However, other religious scholars, especially within the disciplines of Islamic theology (kalām) and jurisprudence (fiqh), interpreted the covenant-verse metaphorically. According to them, God’s communication with humans takes place through the powers of reasoning that He has implanted in the human intellect. These rational powers, they added, become properly functioning when humans reach the age of maturity (bulūgh). Whether the concept of covenant should be conceived as a discrete primordial event or as a stage in the development and maturation of human beings, this Qurʾanic verse has always remained the bedrock of legal obligation and responsibility (taklīf) in the Islamic tradition. The covenanting Creator-Lord (God) hands down to His creature-servant (human being) a body of commandments and rulings, which define the commitments that this creature will have to abide by. As a natural extension of the covenant-related discussion, Muslim jurists developed the concept of khiṭāb Allāh, to be loosely translated as the divine address, believed to be communicated essentially through the Qurʾān and Sunna and whose details were extensively discussed in Islamic jurisprudence. All religious obligations and commitments, couched in the overarching term of taklīf, relate to the nature of the relationship between God as the divine addressor (mukhāṭib) and man as the human addressee (mukhāṭab), which is again premised on the concept of covenant. Generally speaking, the idea that man is answerable to God and is encumbered with moral responsibility was never questioned in the Islamic tradition (Ansari, 1969; Bukhārī, n.d.; Judayʿ, 1997; Rāzī, 1999; Weiss, 1998).

Out of His justice toward the human addressee (mukhāṭab), namely the human being, who is to be charged with taklīf, the Divine Addressor (mukhāṭib), namely God, provided man with certain senses, faculties, and capacities. These faculties and capacities serve as tools, which will enable humans to execute the obligations and duties included in the divine address (khiṭāb Allāh). The scope and volume of these obligations is meticulously linked to everyone’s mental capacity (istiṭāʿa ʿaqliyya), which enables the person to comprehend the purport of the divine address, and physical capacity (qudra badaniyya), which makes the individual able to execute what is included in this divine address (Kīlānī, 2002–2003; Samʿānī, 1999; Sarkhasī, n.d.). In other words, having the standard mental and physical powers makes the person entitled to the full package of religious obligations and duties (taklīf). These two powers (i.e., the mental and physical) make up the basic components of what Muslim jurists called ahliyya (legal capacity). The package of religious obligations and duties (taklīf) automatically decreases once either of these two types of powers becomes deficient or is not properly functioning (Ghaly, 2016). This rule is premised on a number of theological principles and legal maxims in Islam.

One of the key theological principles in this regard reads, “charging someone with something he or she incapable of is untenable” (taklīf mā lā yuṭāq muḥāl) (Qarāfī, n.d., vol. 2, p. 277). This principle is tied to certain divine attributes like justice and mercy. In the same vein, multiple legal maxims have echoed the same spirit, such as the core legal maxim which reads: “hardship begets ease” (al-mashaqqa tajlib al-taysīr) and its various submaxims and alternative formulations including “hardship causes the giving of facilities” and “latitude should be afforded in the case of difficulty” (Safi, 2012; Suyūṭī, 1990). Such maxims, which have been applied to a great number of individual cases and issues throughout Islamic history, attest to the conviction shared by Muslim jurists that whenever the list of obligations and duties starts to be the cause of undue hardship for specific persons in specific situations, then counterbalancing measures of leniency and ease should be introduced to keep taklīf within the bearable standards for an average human being.

Within the context of the previously sketched worldview, premodern Muslim jurists developed extensive and complex discussions around legal capacity and its two subcategories. This context had essentially to do with recognizing the varying degrees of physical and mental capacities with which humans have been created and the necessity of taking this diversity into consideration when the package of religious obligations is to be determined for each individual. As part of operationalizing divine justice, the rule agreed upon among Muslim jurists is that the less capacities individuals have the less obligations they will be asked to fulfill. Thus, focusing exclusively on a list of mundane individual rights (e.g., managing one’s financial affairs, having access to bank loans, mortgages, and other types of financial credit) and ignoring the aforementioned religious context can disturb the integrity of the ethical reasoning when we address the legal capacity of persons with disabilities. This does not mean that mundane rights do not make part of the ethical reasoning in the Islamic tradition but they are not the only factors to be considered. In the Islamic tradition, the packages of rights and those of duties are inseparably linked with each other and one can hardly argue for the former without keeping the latter in mind. For instance, the phrase legal capacity for rights in the CRPD discussions is equivalent to the term capacity of obligation (ahliyyat al-wujūb) in the Islamic tradition, which means the capacity to acquire both rights and duties (Schacht, 1982).

The main contours of discussions on legal capacity and the divisions within the Islamic tradition on this subject will be elaborated further subsequently. These discussions still represent the main source of information for the contemporary standpoints adopted by Muslim religious scholars and also for the codified laws in the Arab and Muslim world (Abū Zahra, 1994).

Terminology of persons with mental disabilities

Before getting into the details and ramifications of the concept of legal capacity and its Scriptural basis in the Islamic tradition, a note on terminology related to mental disability is due. The premodern Islamic tradition, as reflected in the works of Muslim religious scholars, developed its own terminology to express the group we now call persons with mental disabilities. This premodern terminology is still in use in the works written by contemporary religious scholars and also in the codified laws adopted by Muslim-majority countries (Abū Zahra, 1994). Two overarching terms were frequently used, namely the verbal noun junūn (madness or insanity) and the passive participle majnūn (the person who has junūn; a madman or an insane person). The latter term appears in the title of the previously mentioned work written by Michael Dols, Majnun: Madman in Medieval Islamic Society. Dols argued that majnūn was the most commonly used designation in Islamic culture for describing persons with unusual behavior and thus it can be used to designate those we now consider to be “mentally ill” (Dols, 1992). In modern times, these terms have become either outdated or sometimes even offensive and unfriendly. Other terms now in vogue include mental illness, mental disorders, psychosis, schizophrenia, mania, neurosis, etc. (Cooper & Sartorius, 2013; Hilāl, 2011; Scheid & Brown, 2010). However, the premodern terms will be frequently used subsequently, mainly because these are the terms used by the literature studied and analyzed in this article. Using the modern terms instead of majnūn and its derivatives will cause terminological inaccuracies and irregularities. It is true that premodern terminology is sometimes vague and madness will at best be defined as “any form of persistent behavior that is judged by a social group at a specific time and place to be abnormal or highly unusual” (Dols, 1992, p. 5; Wizārat al-Awqāf, n.d., vol. 16, p. 99). However, it seems that this vagueness had its own function. For instance, the criteria for insanity were less rigid and this gave a greater role to the social context in determining what insanity is. Within this premodern setting, medical and governmental institutions did not have the final word, but rather only functioned as part of a larger network consisting of many other actors including family, neighborhood, and society at large, who would together determine what insanity actually was. The confluence of increased state control and modern (European) medical knowledge is sometimes even frowned upon and seen as one of the to-be-criticized influences of modernity on modern psychiatry (Arabi, 2004, 2011; Dols, 1992). Such nuances in the literature to be analyzed subsequently will be lost once the premodern terminology is abandoned.

Scriptural basis of legal capacity

Standpoints of Muslim religious scholars on legal capacity (ahliyya) are premised on references in the main sources of Islamic legislation, namely the Qurʾān and Sunna. At this juncture, we need to keep in mind that religious scholars were usually of the opinion that the rulings governing children who had not yet reached the age of discernment (tamyīz) also applied to persons with insanity and thus the legal position of both groups could sometimes be judged on similar grounds. That is why the Qurʾanic verses and Prophetic traditions that relate to children are sometimes quoted by religious scholars, by way of analogy, to prove the Scriptural basis of the restrictions on the legal capacity of majnūn. Both groups, the religious scholars argued, are to be considered “incapacitated” because of their common inability to reason (Dols, 1992).

Besides the previously mentioned Qurʾanic verse on the covenant (mithāq) (07:172), one comes across two other Qurʾanic references in the works of both early and contemporary Muslim jurists. The first reference reads, “But if the one who has the obligation is of limited understanding (safīh) or weak or unable to dictate himself, then let his guardian dictate in justice” (02:282). The second reference consists of two consecutive Qurʾanic verses, namely, “And do not give the weak-minded (sufahāʾ, plural of safīh) your property, which Allah has made a means of sustenance for you, but provide for them with it and clothe them and speak to them words of appropriate kindness. And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them [to be of] sound judgement, release their property to them. And do not consume it excessively and quickly, [anticipating] that they will grow up. And whoever [when acting as guardian] is self-sufficient should refrain [from taking a fee]; and whoever is poor, let him take according to what is acceptable” (04:05–06) (Wizārat al-Awqāf, n.d., vol. 17, pp. 85–86).

According to Muslim jurists, these Qurʾanic verses indicate that managing one’s property and possessions is conditioned by having the necessary mental capacity (istiṭāʿa ʿaqliyya). They added that reaching the age of maturity (bulūgh) is usually a natural (biological) indication that this capacity is functioning properly. However, if the maturity of one’s legal capacity remains doubtful even after becoming of age, then the person in question should be “tested.” In this regard, Muslim jurists usually speak about simple procedures like making sure that the person is not confusing buying with selling, is not easily deceived in his transactions and dealings with others, etc. Some religious scholars like al-Shāfiʿī, (d. 820) stressed that the “testing” process, supposed to continue for one month, should take individual differences into consideration. Thus, al-Shāfiʿī, explained, the mental skills in managing one’s own business, expected from someone brought up among merchants will not be the same as someone who hardly went to the market, and again not the same as a woman who may have spent most of her time at home. In case the “testing” process showed that the person is, mentally speaking, incapable of managing his or her business, then a guardian should take over this role (Dols, 1992; Shāfiʿī, 1990). As for the Sunna, the key Prophetic tradition quoted in the context of legal capacity reads: “The Pen does not record against [i.e., responsibility is waived for] the sleeper until he awakes, the minor until he matures, and the insane [majnūn] until he regains his sanity” (Dols, 1992; Wizārat al-Awqāf, n.d.).

Based on these Scriptural references, Muslim religious scholars developed a vast number of rulings with relevance to the majnūn. These rulings were scattered under different headings, the most important of which were the complex system of legal capacity (ahliyya) in addition to interdiction (ḥajr) and guardianship (wilāya). Some of the details differed from one school of law to another⁸ in the Islamic tradition, whereas other issues were points of agreement among Muslim religious scholars (Wizārat al-Awqāf, n.d.).

Two types of legal capacity

Deliberations of Muslim jurists on the previously mentioned Scriptural references eventually resulted in making a distinction between two main types of legal capacity, namely capacity of obligation (ahliyyat al-wujūb) and capacity of execution or capacity to act (ahliyyat al-adāʾ).

As for the capacity of obligation, it refers to one’s potential to possess legal rights or obligations. This type of capacity is present in every human being, including the embryo, from the very moment of pregnancy and continues to exist up to the moment of one’s death. Muslim jurists agreed that “being human” is the sole criterion for enjoying the capacity of obligation and thus it is not conditioned by reaching a certain age or by developing mature mental or physical skills. This type of capacity makes the person eligible for a long list of rights. This list includes the right to life, ownership, financial maintenance (nafaqa), lineage (nasab), etc. For instance, executing the penalty of a pregnant woman who has been sentenced to death must be postponed until she gives birth. This is because the life of the unborn embryo, who has his or her own capacity of obligation, must be protected. By the same token, the unborn embryo will have the right to own property through different mechanisms like gifts and testaments dedicated to him or her and also through inheritance. However, Muslim jurists speak about incomplete capacity of obligation (ahliyyat wujūb nāqiṣa) in the case of the unborn embryo in particular. This capacity remains “incomplete” throughout the period of pregnancy because the life of the embryo is still contingent on, and attached to, the mother’s life. Being “incomplete” here means that the embryo will be entitled to rights but will not be bound by parallel obligations, like taking care of the poor members of his or her family if he or she is well off. After birth, all human beings, including the newborn and the majnūn, enjoy full capacity of obligation (ahliyyat wujūb kāmila), which entails the full list of both rights and obligations. This means, among other things, that the majnūn will be entitled to the right of receiving financial help, through the system of maintenance, if he or she is poor, but will also be bound by the duty to provide financial help for his family members, such as parents and children if they are poor, once he or she has the means to assist them financially. By the same token, someone with junūn (insanity) will be liable to financial fines if he or she damaged other person’s belongings. However, insanity will relieve the majnūn from the death penalty or other corporeal punishments because “intentional” aggression is inconceivable due to the absence of the mental powers that produce the intention (Arabi, 2011; Shādhilī, 1979; Wizārat al-Awqāf, n.d.).

Capacity of execution or capacity to act (ahliyyat al-adāʾ) is defined as the eligibility of the person to perform actions that are considered valid from a religio-legal perspective. To enjoy this type of capacity, the person in question should have the necessary mental capacity (istiṭāʿa ʿaqliyya) to understand the previously mentioned divine address (khiṭāb Allāh) and also the necessary physical capacity (qudra badaniyya), which enables him or her to put this divine address into practice. Because of its relevance to the case of majnūn, we focus subsequently on mental capacity in particular. When his or her mental powers become mature, a person enjoys full legal capacity of execution (ahliyyat adāʾ kāmila). When these powers are flawed but not completely missing, then his or her legal capacity of execution will be partial. When the mental powers are totally missing and the person is judged to be majnūn, then he or she will completely lose the legal capacity of execution (Wizārat al-Awqāf, n.d.).

Man’s actions, as far as they relate to the divine address, are roughly divided into two main categories. The first category includes the actions that make part of the man-God relationship, known in Islamic jurisprudence as claims of God (ḥuqūq Allāh), like performing ritual prayers, fasting, pilgrimage to Mecca (ḥajj), and paying a portion of one’s wealth to the poor (zakāt). The second category comprises the actions that make part of the man-man relationship, known in Islamic jurisprudence as claims of humans (ḥuqūq al-ʿibād), like buying, selling, marriage, divorce, and committing offenses against other persons. For both categories of action, man is commanded by God, through the divine address, to act in a specific way. The question addressed by the legal capacity of execution is how the actions, in both categories, taken by the majnūn should be considered from a religio-legal perspective.

Muslim religious scholars agreed on the general rule that junūn (madness) affects legal capacity of execution and consequently also the legal position of the actions of these individuals. This rule is premised on the following Prophetic tradition: “The Pen does not record against [i.e., responsibility is waived for] the sleeper until he awakes, the minor until he matures, and the insane until he regains his sanity.” As for the actions that fall within the previously mentioned “Claims of God” category, the agreement is that the majnūn is exempt from the obligations of performing ritual prayers, fasting, and performing pilgrimage to Mecca (ḥajj). This is because of the inability of the majnūn to grasp the divine address that commands the performance of these rituals. The mental condition of the majnūn puts him or her outside the group of the addressees. Additionally, the validity of devotional acts requires having the intention (niyya) to perform them in a specific way and for a specific purpose and this cannot be proven in the case of the majnūn.⁹ The jurists, however, disagreed on zakāt and whether it must be paid from the wealth of the majnūn. According to some jurists, the previously mentioned rule applies to zakāt as well because it is a devotional act like prayer, fasting, and pilgrimage, whose performance requires intention and thus cannot be done by proxy. However, the majority of Muslim jurists reached a different conclusion. According to them, zakāt is not exclusively a devotional practice because it also involves the element of supporting the poor and thus relates also to the category of the claims of human beings (ḥuqūq al-ʿibād), which can be performed by proxy through the majnūn’s guardian. Additionally, the obligation of paying zakāt is conditioned by having surplus wealth, a portion of which will be paid to the poor. Whenever this is the case with the majnūn, then the divine address of paying zakāt will be directed to the one who can act on behalf of the majnūn, namely the guardian (Arabi, 2011; Samarrāʾī, 1973; Wizārat al-Awqāf, n.d.).

Muslim jurists also agreed that madness (junūn) invalidates the actions that fall into the category of man-man relations, or the so-called claims of human beings. This means that all the transactions made by the majnūn, including buying, selling, or other financial contracts, in addition to contracts of marriage and divorce, will have no legal effect and will be considered as nonexisting. All these transactions and contracts should be arranged through the guardian of the majnūn. In the same vein, violent actions committed by the majnūn against other persons cannot be considered intentional offenses. Thus, the majnūn will not be subject to death penalty or other corporeal punishments because “intentional” aggression is inconceivable in such a case due to the absence of mental powers that are responsible for the element of intentionality. But to protect the interests of the other persons who have been harmed, financial liability will be in force and the guardian of the majnūn will be in charge of paying the due financial compensation (Arabi, 2011; Wizārat al-Awqāf, n.d.).

Besides the previously mentioned rule, which nullifies the legal capacity of action for the majnūn and thus necessitates appointing a guardian, Muslim jurists spoke about many exceptions and nuances. First of all, the agreement is that this rule applies only to the case of permanent and total loss of sanity. Muslim jurists did not approach insanity as one single block but recognized that it has different types and degrees. According to them, insanity can be permanent (muṭbiq) or intermittent (mutaqaṭṭiʿ) and can be full (tāmm) or partial (juzʾī), and each type has its own rulings. On the basis of this categorization, the person with intermittent insanity will have full legal capacity of action during the periods of lucidity and will have partial capacity when his insanity is partial in nature. The criterion for judging whether madness is permanent or intermittent varies from one action to another. For instance, insanity that continues for more than one day will be considered permanent for the duty of ritual prayers and thus the majnūn does not have to make up the prayers of that day even if he or she recovers later. For the obligatory fasting during the month of Ramaḍān, madness that continues throughout the month will be considered permanent and thus the majnūn will be exempted from the duty of fasting during this month and he or she will not be under obligation to make up the missing days thereafter. For zakāt, madness that continues for more than one year is to be judged as permanent, otherwise junūn will be seen as intermittent and the majnūn will be bound by this religious obligation (Wizārat al-Awqāf, n.d.). Similarly, intermittent madness will not be a barrier to conclude one’s financial contracts, marriage, or divorce, or to be liable for offenses committed as long as the periods of lucidity permit the person to express his intentions and what he exactly wants (ʿAwda, n.d.; Kharshī, n.d.; Nawawī, n.d.; Wizārat al-Awqāf, n.d.).

The nuances that apply to the distinction between permanent and intermittent madness also hold true for the distinction between full and partial insanity. Other than the full insanity that nullifies the legal capacity of action in toto the majnūn who has only partial insanity will enjoy partial legal capacity of action (ahliyyat adāʾ nāqiṣa). One of the key terms used by Muslim jurists to express partial insanity is ʿatah (usually translated as lunacy, idiocy, or imbecility)¹⁰ whose past participle is maʿtūh (lunatic, idiot, or imbecile). ʿAtah was defined by some jurists as diminished rationality (nuqṣān al-ʿaql) without actually amounting to total insanity or madness. Some jurists argued that the presence of a certain level of discernment (tamyīz), even if it is partial, would validate some of the actions performed by the majnūn. In this context, jurists usually held an analogy between the maʿtūh and the discerning minor (ṣabī mumayyiz). According to the majority of Muslim jurists, the maʿtūh is not under obligation to perform the ritual practices like prayers, fasting, and ḥajj.¹¹ However, some of these actions will be considered valid in case the level of discernment that the maʿtūh possesses would enable him or her to perform them out of understanding their nature and having the intention to perform them for the sake of God (ʿAwda, n.d.; Fayyūmī, n.d.; Samarrāʾī, 1973; Wizārat al-Awqāf, n.d.). As for the actions that fall within the scope of man-man relations, Muslim jurists expressed different opinions on the degree of legal capacity of action that the maʿtūh would have, again by making an analogy with the discerning minor. Financial obligations including paying financial compensation for damaging others’ possessions and paying maintenance for one’s wife and relatives can all be done by the maʿtūh him or herself. If the maʿtūh did not do this him or herself, then the guardian should undertake these obligations on his or her behalf. In the case of homicide, however, the maʿtūh will be treated like the majnūn and thus cannot be sentenced to death. Because of the doubt as to whether the maʿtūh may possess the element of intentionality, the punishment of the maʿtūh for this offense should take a financial form, namely blood money (diya) (Samarrāʾī, 1973; Wizārat al-Awqāf, n.d.).

The Ḥanafī school of law developed a three-tiered typology to systemically judge the actions of the maʿtūh that fall into the category of interhuman relations. This typology was incorporated later into the Ottoman Majalla¹² and proved to be appealing for contemporary jurists as well. The first type includes the actions that are exclusively beneficial. The maʿtūh is authorized to perform these actions without endorsement from the guardian. The second category comprises the actions that are exclusively detrimental. When the maʿtūh takes such actions, they will be considered invalid even if they were approved by the guardian. The third category includes the actions that fall into the intermediate position between the exclusively beneficial and the exclusively harmful actions. This type of action will be considered valid only if they have been approved by the guardian. Muslim jurists gave various examples of actions that would fall into each of these three categories. Accepting gifts, endowments, charity, and similar donations, which enable the maʿtūh to add something to his or her wealth without incurring costs, are examples of the first category. On the other hand, examples of the second category include giving gifts or charity, and similar actions, which make the maʿtūh lose part of his or her wealth without receiving something in return. Muslim jurists usually classify divorce as one of the actions that falls into this second category. Finally, other actions like marriage, buying, selling, leasing, and most of the financial transactions fall into the third category (Arabi, 2011; Samarrāʾī, 1973; Wizārat al-Awqāf, n.d.).

Part III: How wide is the gap?

The approach adopted by the UN Disability Convention on legal capacity of persons with mental disabilities is not identical to the approach that one can infer from the parallel discussions within the Islamic tradition. In some aspects, the gap between the two approaches is wide, whereas in other aspects the two approaches come quite close to each other. In the critical assessment subsequently, the points of both disagreement and agreement between the two approaches will be outlined and finally some suggestions for narrowing the gap will be proposed.

Points of disagreement

The position that legal capacity should be approached as one single block, with no possibility for making distinction between different types or levels, and arguing that persons with mental disabilities indiscriminately should enjoy legal capacity in the same way that other persons do is problematic from an Islamic perspective. Although this position is motivated by defending the human dignity and concomitant rights of persons with mental disabilities, the whole approach will be problematic when certain religious aspects are taken seriously. As explained previously in Part II, the relationship between God as the divine addressor and man as the human addressee and the ensuing religious obligations (taklīf) necessitate a much more nuanced approach. The differences among persons in their capacity to grasp the divine address and to put its purport into practice should be accommodated. Otherwise, some persons will be overburdened with obligations that go beyond the capacities that God provided them with and this is contrary to divine justice. Adopting an approach according to which persons who have lost their rational powers or possess deficient ones are equally bound by the same religious obligations as other persons, one can argue, is not as human rights friendly as the advocates of the CRPD may claim. In this way, persons committed to the Islamic religion as a way of life would feel guilty for not performing these religious obligations. Additionally, it will be an extra burden for the family members who, in such case, will be responsible for helping their relatives with mental disabilities to perform these obligations.

Dismissing the objections expressed by the Arab countries during the deliberations on the UN Disability Convention and dealing with them just as a linguistic “hair-splitting” issue is again problematic. The greater part of this article was dedicated to demonstrating the religious aspects of legal capacity in the Islamic tradition and that they are premised on references in the Islamic Scriptures, namely the Qurʾān and Sunna. These religious aspects are not just part of a remote history but also represent the backbone of the contemporary discussions on legal capacity among the more than 1 billion followers of this world religion. These religious aspects have also been translated into legal codifications, which are in force in Muslim-majority countries. Bearing such remarks in mind, it becomes difficult to defend the claim that the position adopted by the UN Disability Convention on legal capacity represents universal consensus. As explained in the article, the Ad Hoc Committee of the Disability Convention even decided to take out the modifications proposed by the Arab countries without voting. What is also equally problematic is holding that the approach adopted by the CRPD constitutes part of our modern values and thus is necessarily good and progressive, whereas other approaches that disagree with the CRPD approach are a “stranglehold of the past” and are thus inherently deficient and regressive. In Islam, and possibly in other religious and nonreligious philosophies of life, long-established concepts, whose roots go back to the founding period of the religion, have a high degree of authoritativeness and appeal among the followers of that religion or philosophy. By sidelining the religious aspects in its discourse, the UN Disability Convention, like many other international human rights documents, misses an important source of accumulated wisdom provided by these world religions.

Points of agreement

Despite the previously mentioned differences between the approach of the CRPD and that of the Islamic tradition, this article shows that what is common between these two approaches is much more than their differences. Just as representative examples, in this section I focus on three main points of agreement. To start, the social model of disability, whose adoption was one of the driving forces behind the drafting of the Disability Convention, is much closer to the spirit of the Islamic tradition than the medical model (Ghaly, 2016), especially when it comes to mental disability. As outlined in this article, researchers stress that medical knowledge, despite its significant role in diagnosing and treating mental disturbances, does not have monopoly on determining what madness actually is. Michael Dols (1992) succinctly formulated the dominant position in the Islamic tradition by saying, “Individual circumstances were crucial to any such judgement. It was largely a social and not a clinical decision” (p. 4). The alliance between medical knowledge and state power to determine insanity is seen by some researchers as part of the project of western modernity that affected some modern codified laws on legal capacity in the Arab world, and this is how they deviated from the spirit of Islamic Sharia (Arabi, 2004, 2011).

Another important point of agreement between the CRPD approach and that of the Islamic tradition is that they both care about the human dignity and the concomitant rights of persons with disabilities. As explained throughout this article, the first type of legal capacity (i.e., capacity of obligation) is the main mechanism through which all humans can claim their rights and persons with mental disabilities are no exception in this regard. Muslim jurists consensually agreed that insanity cannot be a sufficient ground for denying the majnūn the right to have a partner through the institution of marriage (nikāḥ), to own property (milk), to be officially attributed to the network of his or her blood relatives (nasab), or to possess any other basic human right. There are certain restrictions imposed on the majnūn (e.g., having sexual relationship outside marriage) not because of their insanity, but rather because they are general restrictions related to the philosophy of building up relationships in Islam and they apply to all Muslims. The other type of legal capacity (capacity of execution or capacity to act) is intended to help persons practice the rights they have acquired through the capacity of obligation. In principle, persons should be able to practice these rights directly by themselves but sometimes someone else, namely the guardian, should practice these rights on behalf of the person who cannot do this independently. In the Islamic tradition, the main purpose of guardianship is to protect and promote the rights of persons with mental disabilities and not to usurp the rights of these persons (Wizārat al-Awqāf, n.d.).

To take marriage as an applied example, religious scholars held that the guardian can get the majnūn married if this is the will of the majnūn, expressed either by words or by actions (e.g., if the man shows interest in women or the woman shows interest in men). In this case, the guardian is doing nothing but executing the will of the majnūn. The other circumstances under which the guardian should conclude marriage on behalf of the majnūn is when it is proven that marriage will be in the interests of the latter. One of the recognized proofs is a medical report showing that marriage can help the majnūn get better or completely recover. If the guardian unjustifiably insists on preventing the majnūn from marrying, the judge should take over this role and facilitate the marriage of the majnūn (Abū Zahra, 1994). Keeping in mind that in reality the guardian can abuse his or her authority, many guarantees were introduced to avoid potential misconduct by the guardian. For instance, the guardian should be chosen from the family of the majnūn, where the preference is for the father, grandfather, mother, son, daughter, and the like to assume this role, because the guardian is expected to act like a parent for the ward. The guardian should also be known for his or her upright character (ʿadl) because in the end guardianship is akin to a religious duty. Additionally, guardianship is seen as a public office and thus it is subject to the supervision of the members of society. Each individual is, in principle, under obligation to inform the judge about the misconduct of a guardian and the judge has the authority to remove this misbehaving guardian and appoint a better one (Dols, 1992). The general rule which governs the relationship between the guardian and the ward, is that any action that is detrimental to the interests of the majnūn will be considered invalid and void from a legal perspective, even if it is taken or approved by the guardian.

A third point of agreement between the CRPD approach and that of the Islamic tradition toward the legal capacity of persons with mental disabilities is that the expressed will of these individuals should always be taken seriously. This standpoint is a natural flow from the recognition of the human dignity of persons with mental disabilities. In the Islamic tradition, having a mental disability does not automatically result in losing the legal capacity to act. The various divisions of insanity (e.g., permanent vs. intermittent and complete vs. partial), which Muslim jurists detailed in their works, allow considerable room for empowering the mentally-disturbed. Whenever their mental capacities permit them to understand what they are doing, or, in the juristic terminology, whenever they have discernment (tamyīz), their will should be respected even if these mental capacities are temporary in nature or limited in scope. Also, giving family members the authority to determine madness or the return of sanity makes the law more flexible to accommodate the individual differences and the complexities of subjectivity. This means that complete loss of the legal capacity to act would only happen under limited conditions when one’s mental capacities are completely absent and the state of insanity becomes visible for the average person, not just for the medical experts or judges. The Ḥanbalī jurist Ibn Qudāma (d. 1223) explained this position by saying, “[Determining] Insanity does not require exerting much intellectual effort (ijtihād) and it does not cause dispute” (Arabi, 2004; Ibn Qudāma, 1968). There is no doubt that this outlook, in line with the spirit of the CRPD approach, will keep the recognized cases of insanity to the absolute minimum level. It is also to be noted that placing restrictions on one’s legal capacity to act is not something exclusive to the majnūn: the rule also applies to many other categories of persons whose miscalculated actions may cause harm to society in general. These include minors, bankrupt debtors, fraudulent or misbehaving muftis, ignorant physicians, and others (Wizārat al-Awqāf, n.d.). So, there is hardly any purposeful act of discrimination against persons with mental disabilities in the Islamic tradition, a point that the advocates of the Disability Convention also care about.

Suggestions for narrowing the gap

The UN Disability Convention and the rich discussions on legal capacity with relevance to this international document on one hand and the parallel discussions in the Islamic tradition on the other hand are both significant legacies. Narrowing the gap between the two legacies and highlighting the points of agreement is crucial for facilitating potential cross-fertilization of beneficial ideas, something that will eventually help improve the status of persons with disabilities worldwide.

In the first section (Points of Disagreement) of this part, reference was made to the key points that need to be revised by the advocates of the UN Disability Convention in the light of the discussions within the Islamic tradition. Below, we address a key idea introduced by this Convention and its governing philosophy, which can be of benefit in discussions within the Islamic tradition. The idea is giving preference to supported decision-making rather than substituted decision-making. This means that whenever persons with mental disabilities lack certain mental capacities, efforts should first focus on providing extra support for these persons so that they can still make their own decisions, instead of moving directly to the system of guardianship in which other persons will make decisions on their behalf. Both premodern and contemporary discussions in the Islamic tradition on the legal capacity of persons with mental disabilities reflect the dominance of the substituted decision-making system. However, incorporating the supported decision-making system into the Islamic tradition and giving it higher priority, I argue, will not only narrow the gap between its approach and that of the Disability Convention but will also enrich the Islamic discussions on this issue and make them more faithful to the spirit of Islam.

To demonstrate the Scriptural basis of this proposal, reference should be made first to the Qurʾān and Sunna. The previously mentioned two Qurʾanic verses (04:05–06), used by Muslim jurists in the context of the legal capacity of persons with mental disabilities, speak about “testing” the concerned persons to see if they are, rationally speaking, mature enough to manage their own business. As explained in the article, Muslim religious scholars usually speak about a simple test, the aim of which is to judge if the person in question can differentiate between selling and buying and the like. If the person fails in this test, guardianship, or the substituted decision-making system, will usually come into force. What is proposed here is that the “test” can be more rigorous and more focused on the skills needed for a specific action. So, if we want to judge whether someone with mental disability has the legal capacity to take the decision to get married, the test will focus on the skills that an average person needs to take such a decision. If one or some of these skills are missing, but can be compensated for by providing support like a training program or by using certain technological tools, then providing this support should be prioritized over the guardianship system, which should always remain as the last resort. There is an example from the time of the Prophet of Islam that also gives credit to this proposal. Ḥibbān ibn Munqidh is one of the Companions of the Prophet Muḥammad (PBUH) who used to work as merchant. After having an accident which affected his mental capacities, his sons wanted to restrict his legal capacity to act in terms of buying and selling, out of fear that he could easily be deceived by other merchants. Ḥibbān went to the Prophet and complained about the restrictions imposed upon him by his sons. Prophet Muḥammad, instead of endorsing the guardianship system, introduced specific procedures in the market to accommodate the special case of Ḥibbān. According to these procedures, the Companion was to remain able to practice his usual business, but was to inform the other merchants about his vulnerability by saying “[there should be] no fraud.” It seems that this phrase served as a code between Ḥibbān and his contemporary merchants to indicate his deficient mental capacities after the accident. Additionally, Ḥibbān was to be granted three days to evaluate any transaction he had made and he was able to revoke it during this period if he realized that he had been deceived (Wizārat al-Awqāf, n.d.). Through such reading of the relevant passages in the Qurʾān and Sunna, one can also see that going back in history to the founding period of a world religion like Islam and using its Scriptures is not necessarily pursuing a “stranglehold of the past.” On the contrary, it can be progressive and forward-thinking.

The various divisions and categorizations of insanity (e.g., permanent vs. intermittent and full vs. partial), which were adopted by premodern jurists and remained authoritative among contemporary religious scholars, can also be a good entry point to narrow the gap between the approach of the Islamic tradition and that of the Disability Convention. Such divisions were incorporated within the Islamic tradition with the aim of preserving a certain degree of legal capacity for persons with mental disabilities whenever possible. In the light of modern advancements in science including medicine, psychiatry, and psychology, the Islamic approach to the legal capacity of persons with mental disabilities needs to be more nuanced than it used to be. For instance, besides the full and partial legal capacity to act, a third category can be added, namely context-specific legal capacity to act. Through this proposed three-tiered categorization, the possibility of losing legal capacity to act in toto will be extremely low (Table 1).

Table 1. Legal capacity to act (ahliyyat al-adāʾ) of persons with mental disabilities: the proposed three-tiered categorization.

(1) Full Legal Capacity	Through supported decision making
(2) Partial Legal Capacity	(A) Naturally
	(B) Through supported decision making
(3) Context-Specific Legal Capacity	(A) Naturally
	(B) Through supported decision making

According this categorization, an attempt will first be made to achieve the full legal capacity of mentally disabled persons by compensating for their deficient mental capacities through the supported decision-making system. If this attempt proves to be impossible, then we move to achieving partial legal capacity. For instance, the person in question can be judged to be capable of taking decisions relating only to managing his or her business affairs, such as buying and selling, or only to social affairs like marriage and divorce. This can happen naturally (i.e., without need for external support) or may need to employ the supported decision-making system. If achieving partial legal capacity proves impossible, then efforts should be directed to achieving context-specific legal capacity. This means that someone may need to sell or buy a house and thus this person’s legal capacity to act will be judged only in reference to this specific act. Like the second category, this type of legal capacity may exist naturally or may need external support. To avoid the trap of medicalization, it should be stressed that the supported decision-making system should not be restricted to the medical aspects. As shown in the example that took place during the lifetime of the Prophet (PBUH), support can take the form of introducing specific procedures to empower persons with mental disabilities. If all these attempts fail, then the last resort will be the guardianship system to protect and promote the interests of the mentally disabled person. Future researchers should focus on examining how the borders of each category can be determined and how concrete cases would fit in each category and under which criteria. This type of research would ideally be interdisciplinary in nature, where specialists from various fields, including Islamic Studies, psychology, and psychiatry should collaborate, so that they can approach these issues from various angles.

Conclusion

In the present article, I have examined the concept of legal capacity and its proposed reforms, including the supported decision-making system, as introduced by the CRPD. I argued that the reservations expressed by a number of Muslim-majority countries against the CRPD Article on legal capacity had to do with religious aspects rooted in the Islamic tradition. These religious aspects of legal capacity, including both theological and juristic ramifications, were explained in detail. The last part of the article outlined the main agreements and disagreements between the CRPD approach to legal capacity and the parallel discussions in the Islamic tradition. By doing this, I tried to fill the gap in current studies on legal capacity, which would focus either on the CRPD approach or on the approaches existing in the Islamic tradition, without trying to benefit from insights on both sides. In this regard, the article suggested introducing the concept of context-specific legal capacity to narrow the gap between the two approaches and it called for more interdisciplinary studies to fathom out how our understandings and applications of the complex concept of legal capacity can be improved further.

Notes

1 Qua size, the CRPD is also one of the longest UN texts (9,954 words in total excluding its title) compared with the other UN treaties developed for protecting the rights of other groups of persons due to their “status” (see Lewis, 2010).

2 This article states that “The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

3 Article 3 of the CRPD includes the principles: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) nondiscrimination; (c) full and effective participation and inclusion in society; (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; and (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

4 For the full text of the letter, see http://repository.un.org/handle/11176/166964 (last accessed December 25, 2016).

5 For the full text of the letter, see http://hr-travaux.law.virginia.edu/document/crpd/aac26520066/nid-954 (last accessed December 25, 2016).

6 The term premodern in this article roughly refers to the period that predated the nineteenth century. By the end of the eighteenth century and the beginning of nineteenth century, the discipline of Islamic law (fiqh) and Islamic discourse in general went through significant shifts and changes. This was because of various reasons, e.g., European colonialism of many Muslim countries, the exposure to modernity, the decreasing influence of fiqh and particularly the juristic schools (madhāhib), and the increasing influence of European legal systems.

7 The whole article of al-Kīlānī, is dedicated to defending this thesis with various arguments, which we also see in the writings of his contemporaries (e.g., the Islamic approach to the phenomenon of disability could combine between idealism [how things should ideally happen] and realism [how people actually live with certain difficulties and obstacles]); respecting human dignity and honor was always the guiding principle in the juristic rulings formulated for people with disabilities; the vision of Islamic Sharia toward people with disabilities is comprehensive and balanced, etc. (see Kīlānī, n.d.).

8 Various schools of law flourished throughout Islamic history. Within the Sunni tradition, four schools proved to be authoritative and remained influential until today, namely the Hanafī Mālikī, Shāfiʿī, and Hanbalī schools.

9 According to some jurists, some ritual practices like ḥAcco will be considered valid if performed by the majnūn (see Nawawī, n.d, vol. 7, p. 20).

10 It is to be noted that ʿatah for some jurists is just a synonymous term for junūn (madness/insanity) and thus the same rulings would apply for both cases (see ʿAwda, n.d., vol. 1, p. 586).

11 Abū Zayd al-Dabbūsī (d. 1039), from the Ḥanafī school of law and one of the pioneer theorists on legal capacity he held that the maʿtūh would be bound by the duty of performing the ritual practices, just out precaution (iḥtiyāṭan) (see Wizārat al-Awqāf, n.d., vol. 29, p. 276).

12 This was the civil code of the Ottoman Empire in the late 19th and early 20th centuries. The Majalla was seen as the first successful attempt to render Ḥanafī fiqh into legal civil code, roughly following the design of European codes (see Findley, 2007).