Islamic Studies 51:3 (2012) pp.

247262 247









Mental Disability in Medieval !anaf" Legalism

ALI ALTAF MIAN
1




Abstract
This article analyses forms of mental disability in Islamic law (fiqh). Classical and
medieval fiqh specialists discussed two forms of mental disability: mental impairment
(atah) and madness (jun#n). In canonical texts of legal theory, formal discussions of
atah and jun#n appeared in chapters on legal capacity (ahliyyah) and interdiction
($ajr). The fiqh" configurations of the mentally impaired person (mat#h) and the
madman (majn#n) are important to study, for they reveal Muslim jurists critical
assumptions about reason and responsibility, disability and dutifulness, legal
personhood and ethical subjectivity. These peripheral figures are strikingly revelatory
of the meanings Muslim jurists associated with concepts such as norm-obligation
(wuj#b) and norm-performance (ad%). Restricting the analysis to medieval central
Asian !anaf" texts, this article examines how jurists nuanced their theoretical
discussions of legal capacity to include persons with mental disabilities within the fold
of legal personhood and ethical subjectivity. Most !anaf"s divided legal capacity into
two types: the capacity to receive obligation (ahliyyat al-wuj#b) and the capacity to
perform obligation (ahliyyat al-ad%). In this article, I argue that ahliyyat al-wuj#b
provided a conceptual asylum for persons with disabilities. In this way, medieval
!anaf" jurists advanced the Prophetic care and compassion for the mentally disabled.



Introduction
In the !ad"th collection of Ab# D%w#d Sulaym%n b. al-Ashath al-Sijist%n"
(d. 888), we read about a madwoman (majn#nah) indicted for adultery and
brought before the Prophet Mu$ammads (peace be on him) second successor,
Umar b. al-Kha&&%b (d. 644). After consulting with some of his associates,
Umar judged to punish her by stoning. The report of Umars decision



1
I am grateful to Professor Ebrahim Moosa for his sustained support and valuable time,
especially during summer 2010 when I had the privilege of reading Ibn Nujaym with him. My
thanks also go to Professor Bruce Lawrence, Sidra Mian, Saadia Yacoob, Samuel Kigar, and my
two reviewers for their resourceful suggestions. All errors are my burden alone.
ALI ALTAF MIAN
248

enraged the Prophets cousin, Al" b. Ab" '%lib (d. 661), who demanded her
immediate release. Al" then addressed Umar, O leader of the Believers! Do
you not know that the actions of three types of people are not recorded: the
madman until he recovers his reason, the sleeping person until he awakes, and
the child until he reaches puberty? Umar answered in the affirmative. Al"
thereafter posed the obvious question, Then why is this woman about to be
stoned? Realizing the error of his judgment, Umar said, Let her go, and
recited, God is most great!
2
Documenting an early example of the insanity
defense in Islamic history, this story reveals how Muslim sacred law was a
contingent force disposed to both violence and justice.
Madmen and madwomen inhabit the discursive margins of Islamic
law/ethics (fiqh). In the theoretical and practical discourses of fiqh, we
encounter two chief forms of mental disability: mental impairment (atah) and
madness (jun#n).
3
In canonical texts of legal theory, formal discussions of atah
and jun#n usually take place in chapters on legal capacity (ahliyyah) and
interdiction ($ajr). The fiqh" configurations of the mentally impaired person
(mat#h) and the madman (majn#n) are important to study, for they reveal
Muslim jurists critical assumptions about reason and responsibility, disability
and dutifulness, legal personhood and ethical subjectivity.
4
These peripheral



2
Ab# D%w#d Sulaym%n b. al-Ashath al-Sijist%n", al-Sunan, Kit%b al-!ud#d, B%b f"l-Majn#n
Yasriq aw Yu&"b !add%. In his commentary on this !ad"th collection, the Indian !ad"th scholar
Khal"l A$mad Sah%ranp#r" (d. 1927) recorded two different stances on Umars initial ruling.
According to the first stance, which is attributed to Ibn Abb%s, Umar acted out of
forgetfulness of the juristic assessment pertaining to stoning (rajm) (Khal"l A$mad al-
Sah%ranf#r", Badhl al-Majh#d f" !all Ab" D%w#d (Mult%n: Maktabah-i Q%simiyyah, n.d.), 6: 135).
The second stance, attributed to the !ad"th scholar !amd b. Mu$ammad al-Kha&&%b" (d. 996), is
more sympathetic to Umar: Umar did not order stoning for the madwoman (majn#nah). If
the woman in question was in fact afflicted with continuous insanity, then it was inconceivable
for this to be hidden from Umar or those in his presence. Rather, this woman was at times
possessed and at times sane (ibid.). Kha&&%b" further explained that Umar implied her sanity in
issuing his initial ruling, whereas Al" invoked her insanity in his challenge of Umars ruling.
Kha&&%b" is the author of an early commentary on Ab# D%w#ds al-Sunan. See, !amd b.
Mu$ammad al-Kha&&%b", Ma%lim al-Sunan wa Huwa Shar$ Sunan al-Im%m Ab" D%w#d (Beirut:
al-Maktabah al-Ilmiyyah, 1981).
3
Jurists also associated the injudicious person (al-Saf"h) with an unstable intellect (or the
subduing of the intellect by passions and whims). For an analysis of the Saf"h in Islamic law, see,
Oussama Arabi, The Interdiction of the Spendthrift (al-Saf"h): A Human Rights Debate in
Classical Fiqh, Islamic Law and Society 7: 3 (2000), 300324.
4
There are several monographs on disability in Islamic discourses and societies. See, Vardat
Rispler-Chaim, Disability in Islamic Law (Dodrecht: Springer, 2007); Mohammed Ghaly, Islam
and Disability: Perspectives in Theology and Jurisprudence (London/New York: Routledge, 2010);
Kristina L. Richardson, Difference and Disability in the Medieval Islamic World: Blighted Bodies
(Edinburgh: Edinburgh University Press, 2012).
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
249

figures are strikingly revelatory of the meanings Muslim jurists associated with
concepts such as norm-obligation (wuj#b) and norm-performance (ad%).
Restricting my discussion to the texts of medieval central Asian jurists of
the !anaf" School of fiqh, I analyse how legal scholars addressed mental
disability, and thereby revealed their assumptions about human nature and the
revealed norms.
5
The heuristic textual canon I have constructed for my
inquiry stretches from the early eleventh century to the mid-fourteenth
century, and includes works by al-Dab#s" (d. 1039), Fakhr al-Isl%m al-Bazdaw"
(d. 1089), al-Sarakhs" (d. 1090), al-K%s%n" (d. 1191), al-Margh"n%n" (d. 1196), al-
Akhs"kath" (d. 1247), Ab# l-Barak%t al-Nasaf" (d. 1310), Abd al-Az"z b.
A$mad al-Bukh%r" (d. 1330), and (adr al-Shar"ah al-Ma$b#b" (d. 1346).
6
Why



5
For historical studies of the !anaf" School, see, Haytham Khaznah, Ta'awwur al-Fikr al-U&#l"
al-!anaf": Dir%sah Tar"khiyyah Ta$l"liyyah Ta'b"qiyyah (Amman: D%r al-R%z", 2007); Nurit
Tsafrir, The History of an Islamic School of Law: The Early Spread of Hanafism (Cambridge, Mass.:
Harvard Law School, 2004); Christopher Melchert, The Formation of the Sunni Schools of Law,
9th-10th Centuries C.E. (Leiden: Brill, 1997); Christopher Melchert, How !anafism Came to
Originate in Kufa and Traditionalism in Medina, Islamic Law and Society 6: 3 (1999), 318347.
A summary of !anaf" legal thought can be found in Yaakov Meron, The Development of
Legal Thought in Hanafi Texts, Studia Islamica 30 (1969), 73118. For an analysis of the
development of legal hermeneutics in the !anaf" School, see, Brannon M. Wheeler, Applying the
Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in !anaf"
Scholarship (Albany, NY: State University of New York Press, 1996). For a sustained analysis of
different topics pertaining to !anaf" legalism, see, Baber Johansen, Contingency in a Sacred Law:
Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999). For discussions of !anaf" legal
theory, see, Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic
Legal Theory (Atlanta: Lockwood, 2013); Rumee Ahmed, Narratives of Islamic Legal Theory
(Oxford: Oxford University Press, 2012).
6
My central Asian !anaf" textual sources include, Ab# Zayd Ubayd All%h b. Umar b. )s% al-
Dab#s", Taqw"m al-Adillah f" U&#l al-Fiqh, ed. Khal"l al-Mays (Beirut: D%r al-Kutub al-Ilmiyyah,
2001); Fakhr al-Isl%m Ab#l-Usr Al" b. Mu$ammad al-Bazdaw", U&#l al-Fiqh, on the margins of
Abd al-Az"z b. A$mad Bukh%r", Kashf al-Asr%r (see, bibliographical entry toward the end of
this note); Ab# Bakr Mu$ammad b. A$mad b. Ab" Sahl al-Sarakhs", U&#l al-Sarakhs", ed. Ab# l-
Waf% al-Afgh%n" (Beirut: D%r al-Fikr, 2005); Ab# Bakr b. Mas#d al-K%s%n", Bad%i al-(an%i f"
Tart"b al-Shar%i, ed. Al" Mu$ammad Muawwa* and +dil A$mad Abd al-Mawj#d (Beirut:
D%r al-Kutub al-Ilmiyyah, 2010); Burh%n al-D"n Al" b. Ab" Bakr al-Margh"n%n", al-Hid%yah
(Lahore: Maktabah-i Ra$m%niyyah, 2000); !us%m al-D"n Mu$ammad b. Mu$ammad Umar al-
Akhs"kath", Muntakhab al-!us%m" [Al-Muntakhab f" U&#l al-Madhhab], with the commentary al-
N%m" by Ab# Mu$ammad Abd al-!aqq al-!aqq%n" (Karachi: Maktabat al-Bushr%, 2009);
Ab# l-Barak%t Abd All%h b. A$mad !%fi, al-D"n al-Nasaf", [Man%r al-Anw%r] Matn al-J%mi f"
U&#l al-Fiqh, al-Musammah bi Man%r al-Anw%r, with the commentary N#r al-Ab&%r by Maulav"
Bil%l Asghar (Deoband: Maktabah-i Y#suf", 1972); Abd al-Az"z b. A$mad al-Bukh%r", Kashf al-
Asr%r an U&#l Fakhr al-Isl%m al-Bazdaw", ed. Abd All%h Ma$m#d Mu$ammad Umar (Beirut:
D%r al-Kutub al-Ilmiyyah, 2009); (adr al-Shar"ah Ubayd All%h b. Mas#d al-Ma$b#b", al-
Tanq"$ f" U&#l al-Fiqh, ed. Ibr%h"m al-Mukht%r A$mad Umar al-Jabart" (Beirut: D%r al-Kutub al-
Ilmiyyah, 2009); Ubayd All%h b. Mas#d al-Ma$b#b", al-Taw)"$ Shar$ al-Tanq"$, on the
ALI ALTAF MIAN
250

do I choose medieval Hanafism in central Asia? Historically speaking, !anaf"
legalism was the dominant jurisprudence of the Ottoman and the Mughal
Empires from the fifteenth to the nineteenth centuries. To examine this
Schools modes of reasoning with reference to disability and insanity is to
interrogate the matrices of intelligibility in the dominant formation of Islamic
law/ethics. I restrict myself to central Asian !anaf"s because they were chiefly
responsible for giving unprecedented internal coherence and systematic
discursivity to !anaf" legalism. In this article, I do not promise my readers a
social history of insanity in medieval central Asia. That task requires
examining a vast array of historical materials and historiographical
conversations. The scope of my task is quite limited. I illustrate how !anaf"
legalism preserved the Prophetic legacy of exempting the majn#n from legal
obligation while affirming his humanity. To that end, I examine certain legal
concepts, especially legal capacity, which gestured hospitality for the majn#n.
Before moving on to the details, it is appropriate to address the existing
scholarship on madness in medieval Islam.
In his significant study, Majn#n: The Madman in Medieval Islamic Society,
Michael W. Dols argues that medieval Islamic civilization permitted a much
wider latitude to the interpretation of unusual behaviour than does modern
Western society and much greater freedom to the disturbed, non-violent
individual.
7
Dols highlights three models to understand the historically
contingent phenomenon of madness: the disease model, according to which
jun#n is pathological . . . a dysfunction of the brain; the deviation model,
which posits jun#n as a social issue or a divergence from normative
behaviour; the intelligibility model, which takes jun#n as a deprivation of



margins of Sad al-D"n Mas#d b. Umar b. Abd All%h al-Taft%z%n", al-Talw"$ il% Kashf !aq%iq
al-Tanq"$, ed. Mu$ammad Adn%n Darw"sh (Beirut: D%r al-Arqam, n.d.).
7
Michael W. Dols, Majn#n: The Madman in Medieval Islamic Society, ed. Diana E. Immisch
(Oxford: Oxford University Press, 1992), 4. This monograph still remains the most extensive
account of the subject of madness in medieval Islamic society. The following lines from the
concluding section of Dols introduction convey the general gist of the book: Reason was
pivotalit was the link between the visible and the invisible, the body and the soul, and the
individual and society. Reason was the prerequisite for a Muslims full participation in his
community. Yet, paradoxically, the madman was accommodated by society, so that he was not
a pariah, an outcast, or a scapegoat (ibid., 14). In his critical review of Dols, Boaz Shoshan
rebuts this claim, arguing instead that the treatment of the Muslim majn#n was far from
benevolent; confinement at the m%rist%n [hospital] frequently involved harsh measures (Boaz
Shoshan, The State and Madness in Medieval Islam, International Journal of Middle East Studies
35: 2 (2003), 329340, 338). Shoshan diagnoses Dols romantic historical picture of madness in
medieval Islam and urges students of late medieval and early modern Europe [to] see the
hospitals and the confinement of the mad as an Arab invention (ibid., 336).
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
251

rationality or the breaking of the constitutive rules of reason.
8
For Dols, these
three models help us to reconstruct how jun#n was defined in medieval
Muslim societies and to explain their prevalent methods of healing, modes of
perceiving, and ways of protecting the insane.
9
Dols therefore fulfils nimbly
the task he sets for himself: to give his readership a general historical picture of
madness in medieval Islamic society.
Dols argument about the madman in medieval Islamic society confirms
Foucaults passing observation about Arab thought in his monumental The
History of Madness.
10
Linking the thematic concerns of Dols and Foucault,
Oussama Arabi advances our understanding of the significance of the medieval
Islamic approach to mental disability. Arabi argues that modern Middle
Eastern states have conscripted persons with mental disabilities into
population-managing discourses and institutions of control. In these contexts,
the latitude, contingency, and legal provisions of medieval fiqh have been
replaced by the legal procedure of the double examination of the mad
persons soul by medical and judicial authorities.
11
As Arabi explains, this
seismic shift mark[ed] a radical break with the Islamic juridical ideology of
the classical period.
12
In classical and medieval fiqh, Arabi points out,
madness was unproblematic and required no expertisejudicial, medical or
otherwisefor its determination.
13
In effect, due to their institutional-
conceptual mimesis of contemporary European institutions,
14
modern Middle
Eastern polities lost the rich subjective world allowing for a variety of states
on the normality/abnormality scale.
15

While it is true that medieval fiqh provided hospitality to those seen as
suffering from mental disabilities, we also have to acknowledge that


8
Dols, Majn#n, 5.
9
Ibid., 6. Dols is a bit unclear on this point, as elsewhere he states that there were three broad
methods to cure the insane: medicine, religion, and magic (ibid.). We could say that these
methods were not only used to cure the insane, but also to control those designated to be
insane.
10
Michel Foucault, History of Madness, ed. Jean Khalfa, trans. Jonathan Murphy and Jean Khalfa
(London/New York: Routledge, 2006), 117, 121. Foucault attributes early modern medical
humanism to Arab thought: From the end of the Middle Ages onwards, the mad were
treated with a certain degree of medical humanism, perhaps as a result of Oriental and Arab
thought. The Arab world seems to have built some early hospitals specifically for the insane
(ibid., 117).
11
Oussama Arabi, The Regimentation of the Subject: Madness in Islamic and Modern Arab
Civil Laws, in Baudouin Dupret, ed., Standing Trial: Law and the Person in the Modern Middle
East (London/New York: I. B. Tauris, 2004), 266.
12
Ibid., 287.
13
Ibid., 267.
14
Ibid., 269.
15
Ibid., 2878.
ALI ALTAF MIAN
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hospitality can often entail compulsory acculturation and patronisation. We
learn from Dols that fiqh experts were concerned not with healing or
honouring the insane but with protecting the madmans property and
society.
16
For Dols, the jurists treated the majn#n like the child who existed
outside the law but was safeguarded by it, primarily through the legal
scheme of guardianship.
17
But here we can be more careful. It might be better
to argue that the madman was at once included in and excluded from legal
rulings. Medieval fiqh discourses placed the child and the madman not outside
but at the outskirts of the law. Dols claims rightly that Muslim jurists used
imprecise definitions of insanity, but he does not exploit the imprecision and
the ambiguity of the jurists to his advantage, almost assuming as if exactness
and precision were more desirable epistemological positions with reference to
the majn#n.
18
Without romanticizing ambiguity and epistemological
reluctance, it might be useful to consider imprecision and lack of clarity as
safer ethical and epistemological positions when it comes to a non-empirical
phenomenon such as mental disability.
!anaf" jurists positions on mental disability are especially visible in their
theoretical discussions of legal capacity (ahliyyah). Most !anaf"s divided
ahliyyah into two types: the capacity to receive obligation (ahliyyat al-wuj#b)
and the capacity to perform obligation (ahliyyat al-ad%).
19
This division,
however, did not go unchallenged; some jurists considered this division of
ahliyyah to be unnecessary. In agreement with the latter group of jurists,
modern scholars of Islamic law Chafik Chehata and Baber Johansen also argue
that ahliyyah in reality meant the capacity to perform the obligatory acts.
20

While their reading is warranted by numerous medieval !anaf" texts, we
ought to approach this issue as an example of the Schools internal perspectival


16
Dols, Majn#n, 13.
17
Ibid.
18
Ibid., 435. Dols summarizes his treatment of Islamic law by saying, The jurists dealt with
insanity in a brief, indirect, and often cursory manner; the legal notion of insanity is itself quite
imprecise and ambiguous (ibid., 451).
19
I document and discuss this in the section titled, Legal Capacity and the Promise of
Obligation. Muhammad Hashim Kamalis gloss on this is helpful, Legal capacity is primarily
divided into two types: capacity to receive or inhere rights and obligations, referred to as
ahliyyah al-wuj#b, and capacity for the active exercise of rights and obligations, which is referred
to as ahliyyah al-ad% (Muhammad Hashim Kamali, Principles of Islamic Jurisprudence
(Cambridge: Islamic Texts Society, 1991), 351). Kamalis explanation is indebted to Abdur
Rahim, who translated ahliyyat al-wuj#b as receptive legal capacity and ahliyyat al-ad% as
active legal capacity (Abdur Rahim, The Principles of Muhammadan Jurisprudence According to
the Hanafi, Maliki, Shafii, and Hanbali Schools (London: Luzac, 1911), 217).
20
See, Chafik Chehata, tudes de Droit Musulman (Paris: Presses Universitaires de France, 1971),
1: 106, 111; Johansen, Contingency in a Sacred Law, 1967.
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
253

differences. After all, if ahliyyat al-ad% was the only type of legal capacity,
then why did some jurists divide ahliyyah into two types? In other words,
what was the purpose of the category, the capacity to receive obligation
(ahliyyat al-wuj#b)? The seemingly unnecessary category of ahliyyat al-wuj#b
was relevant and merits closer scrutiny, as it was through this concept that
jurists provided a place of refuge and asylum for persons with disabilities. In
what follows, I examine the concepts of legal capacity and obligation, after
providing a summary of mental disability in !anaf" fiqh.

Mental Disability in !anaf" Fiqh
The task of defining mental illness is beset with ethical and political
dilemmas.
21
For the definitions offered by medical experts, government
authorities, or legal theorists sometimes treat transitory psychological states as
permanent conditions. The articulation of definitions is not an innocuous
scholarly task, but revelatory of the ontological, epistemological, and ethical
assumptions of those offering the articulations. !anaf" jurists definitions of
jun#n disclosed their larger theological assumptions about the essence of Gods
address (khi'%b) to humanity and the human capacity to grasp and embody the
legal and ethical demands of this address.
When legal issues pertaining to madmen and madwomen came up,
medieval !anaf" jurists usually relied on medical and popular understandings
of mental illness. They took jun#n as the non-existence of intellect and
discernment, or the opposite of intellect and reason, or the detraction of
intellect, in which the consistent stream of rational action and speech is
disrupted.
22
The distinction between jun#n and atah made a difference in the
legal rulings of some jurists. For al-Dab#s", jun#n consisted of the complete
loss of intellect and atah was the transitory lack of intellect.
23
He observed
further, the mat#h speaks incoherently so that some of his expressions
resemble the speech of the rational man and other expressions resemble the
utterances of the majn#n. This mixing-up of speech is due to a lack in his
intellect.
24
Al-Dab#s" decided on the side of moral caution in determining the
legal personhood of the mat#h. For him, the mat#h was not exempt from the



21
For the U.S. based Hungarian psychiatrist Thomas S. Szasz (19202012), mental illness and
madness have no objective reality. See, Thomas S. Szasz, The Myth of Mental Illness: Foundations
of a Theory of Personal Conduct (New York: Harper & Row, 1961); and Szasz, The Manufacture
of Madness: A Comparative Study of the Inquisition and the Mental Health Movement (New York:
Harper & Row, 1970).
22
Bazdaw", U&#l, 4: 381; Bukh%r", Kashf al-Asr%r, 4: 371; Ma$b#b", al-Taw)"$, 2: 3589.
23
Dab#s", Taqw"m al-Adillah, 433.
24
Ibid.
ALI ALTAF MIAN
254

obligation to perform the acts of worship (ib%d%t).
25
However, other central
Asian !anaf"s refuted al-Dab#s"s position. According to al-Bukh%r", the
majority of later !anaf"s exempted the mat#h from the obligation to
perform.
26
Al-Bukh%r" noted that according to (adr al-Isl%m Ab# l-Yusr al-
Bazdaw" (d. ca. 1099), jurists such as al-Dab#s" had misunderstood the true
character of atah because they had erroneously associated it with sickness and
not with childhood. (adr al-Isl%m argued instead that atah was a type of jun#n
and it inhibited the obligation to perform.
27
Most !anaf"s therefore exempted
persons with mental impairment and madness from the obligation to perform
the acts of worship, such as the ritual prayer, fasting, the alms-tax, and
pilgrimage.
28
Likewise, !anaf" jurists did not hold the majn#n culpable for tort
crimes. His guardians were held responsible for the financial repercussions of
such crimes.
!anaf" jurists took mental disability mostly as a cognitive defect
observable through speech and behaviour. The majn#n lacked the intellectual
capacity to discern between good and bad acts and could not foresee the
harmful consequences of his behaviour. The jurists were concerned with
assessing the legal effects of such loss of sanity, and therefore claimed that
madness causes impediment of the speech acts, such as the performative
utterances associated with divorce, manumission, and gift-giving.
29
Yet they
were far from committing themselves to any rigid definition of jun#n, for they
understood how mental disability affected people differently. They divided
jun#n into two types: partial or temporary madness (jun#n ara)") and
comprehensive or perpetual madness (jun#n mustawib). At times, they even
classified the mat#h into two types: the mat#h and the rational mat#h (al-
mat#h al-%qil).
30
The jurists defined these durations of madness based on the
temporal framework of the acts of worship. Insofar as the five daily ritual
prayers, the perpetually mad person was one who missed all five prayers due
to mental disability. If he/she did not recover his/her senses within the time
of performance, he/she was not required to make-up the missed prayers. In
terms of fasting, the jurists used the full lunar month to determine the
duration of mental disability. Those who came to their senses within a month
were required to make-up the missed fasts, while those who remained insane
for over a month were excused from the obligation of fasting. When it came to


25
Ibid.
26
Bukh%r", Kashf al-Asr%r, 4: 385.
27
Ibid.
28
Ma$b#b", al-Tanq"$, 532.
29
Akhs"kath", Muntakhab al-!us%m", 273.
30
Bazdaw", U&#l, 4: 3867.
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
255

the alms-tax (zak%h), !anaf" jurists used the duration of the full year to
determine the nature of mental disability. The jurists therefore defined mental
disability in practical and contingent ways, as they were concerned primarily
with interpreting the revealed norms.
A good portion of !anaf" legal thinking about mental disability was
mediated by scriptural and rational considerations for the child. According to
al-Bukh%r", the early years of childhood were comparable to jun#n, while the
advanced years of childhood were comparable to atah.
31
The majn#n and the
mat#h shared the textual company of the child in !anaf" discourse as early as
the Kit%b al-!ujjah al% Ahl al-Mad"nah of the K#fah-based authority
Mu$ammad b. al-!asan al-Shayb%n" (d. 804 or 805).
32
The infantilising of the
majn#n was already a notable tendency in classical !anaf" works before the
School spread to central Asia.
33
The analogy of the madman to the child was


31
Bukh%r", Kashf al-Asr%r, 4: 385.
32
Mu$ammad b. al-!asan al-Shayb%n", Kit%b al-!ujjah al% Ahl al-Mad"nah, ed. Sayyid Mahd"
!asan al-K"l%n" al-Q%dir" (Beirut: +lam al-Kutub, 2006), 2: 256.
33
This is evident, for example, in A$mad b. Mu$ammad al-'a$%w", Mukhta&ar al-*a$%w", ed.
Ab#l-Waf% al-Afgh%n" (Hyderabad: al-Lajnah al-Ilmiyyah li I$y% al-Ma%rif al-Num%niyyah,
1951). In 'a$%w"s text, we find side-by-side the child and the majn#n in discussions of
bloodmoney (diyah), expiation (kaff%rah), theft (sariqah), war killings (qatl), and divorce ('al%q).
The !anaf" authority A$mad b. Al" al-Ja--%- (d. 981) wrote a voluminous commentary on
'a$%w"s text, which I use here to provide examples of the analogy of the child and the majn#n.
See, A$mad b. Al" al-Ja--%-, Shar$ Mukhta&ar al-Ta$%w" f" al-Fiqh al-!anaf" (Beirut: D%r al-
Bash%ir al-Isl%miyyah, 2010). In the chapter titled, The Book of Retaliation and Bloodmoney
for Injuries, Ja--%- cited Ta$%w"s ruling that in cases where a child or a majn#n is found guilty
of crimes such as homicide, the payment of the bloodmoney becomes the responsibility of their
guardians (al-%qilah). He then explained that a childs intent (qa&d) has no legal effects insofar as
ascertaining whether the homicide was wilfully or mistakenly committed. The child takes
centre stage in Ja--%-s discussions, and the reader has to assume that Ja--%-s glosses apply
equally to the majn#n (ibid., 5: 341). With reference to expiation: There is no expiation on the
child and the majn#n in anything in which expiation is obligated on the adult rational person
(ibid., 6: 76). In his exposition of Ta$%w"s ruling, Ja--%- explained, This is so because expiation
is a form of worshipping God the Most High, and children and madmen are not required to
perform acts of ritual worship, such as fasting, ritual prayer, and the pilgrimage (ibid.). Ja--%-
then quoted the prophetic saying, The pen does not record the deeds of three persons: the
madman until he recovers his reason, the sleeping person until he awakes, and the child until he
reaches puberty. In his discussion of theft, Ta$%w" said, The [hands] of the child and the
majn#n are not cut when they steal (ibid., 6: 308). To this ruling, Ja--%- added the same
prophetic saying as above, and then proceeded with the qualification that they would have to
return the stolen item (ibid.). In his chapter on jih%d, Ta$%w" wrote, In times of war, Muslims
shall not kill the child, the mat#h, the blind, the disabled, and the monks. They shall not kill
the people of the monasteries, and the women, unless the latter fight them (ibid., 7: 29). Ja--%-
substantiated this position by quoting numerous sayings attributed to the Prophet, the
companions, and the luminaries of the first three generations of Muslims. In Ta$%w"s
discussions of rulings on divorce, we read, The divorce pronounced by the child and the
ALI ALTAF MIAN
256

an analytical convenience, which facilitated legal thinking about subjectivities
of the not-yet (the child) and the not-there (the madman). This analogical
kinship was also an ethical gesture, for to claim that madmen were like
children emphasized an ethic of care, compassion, and protection. The legal
equivalence of children and madmen pertained to the jurists understanding of
a formulaic correspondence between intellectual maturity, the onset of
puberty, and legal majority (bul#gh).

Legal Capacity and the Promise of Obligation
The Qur%n and the Prophet Mu$ammads (peace be on him) reports provide
brief yet instructive guidelines with reference to ahliyyah. Medieval !anaf"
jurists took heed of verses such as, God charges no soul beyond its scope.
34

They also took seriously the Prophetic saying, The pen does not record the
deeds of the sleeping person until he awakes, the child until he reaches
puberty, and the insane until he recovers his mind.
35
In this $ad"th, the
Prophet apparently listed three impediments of legal capacity: sleep,
childhood, and madness. The jurists searched for other impediments as well,
and listed them in their discussions of ahliyyah.
36
In its literal sense, ahliyyah
signified aptitude, suitability, or qualification. In jurists legal terminology,
ahliyyah meant the capability of a person to assume his legal rights and fulfil
his legal responsibilities.
37
In most cases, ahliyyah amounted to sound
intellectual capacity, which the jurists admitted could not be observed




majn#n is invalid (ibid., 5: 12). In order to substantiate Ta$%w"s position, Ja--%- quoted the
prophetic saying, All forms of divorce are permissible, except the divorce pronounced by the
mat#h (ibid.). Ja--%- continued the discussion by citing other reports, including the prophetic
saying, The pen does not record . . . (ibid., 5: 1213). Explaining this report, Ja--%-
importantly noted that the legal equivalence of these three types of individuals was due to the
eclipsing of their moral obligation (zaw%l al-takl"f) (ibid., 5: 13).
34
Qur%n 2: 286; Sarakhs", U&#l, 536.
35
Ab# D%w#d, Sunan, Kit%b al-!ud#d, B%b f" l-Majn#n Yasriq aw Ya-"b !add%; Sarakhs", U&#l,
537; K%s%n", Bad%i al-(an%i, 2: 590.
36
The jurists divided the impediments of legal capacity (aw%ri) al-ahliyyah) into two types:
natural and acquired. The natural impediments included childhood (al-&ighar), madness (al-
jun#n), mental impairment (al-atah), forgetfulness (al-nisy%n), sleep (al-nawm), unconsciousness
(al-ighm%), slavery (al-riqq), sickness (al-mar)), menstruation (al-$ay)), post-natal bleeding (al-
nif%s), and death (al-mawt), while the acquired impediments consisted of ignorance (al-jahl),
intoxication (al-sukr), jest (al-hazl), foolishness (al-safah), travel (al-safr), error (al-kha'a), and
compulsion (al-ikr%h). See, Dab#s", Taqw"m al-Adillah, 433441; Bazdaw", U&#l, 4: 370569;
Akhs"kath", Muntakhab al-!us%m", 272332; Nasaf", Man%r al-Anw%r, 149167; Bukh%r", Kashf
al-Asr%r, 4: 370569; Ma$b#b", al-Tanq"$, 531558.
37
Bukh%r", Kashf al-Asr%r, 4: 335.
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
257

empirically.
38
The soundness or the corruption of the intellect became
apparent through ones speech and action, and especially through ones
decisions. The rational man, argued the jurists, made decisions in favour of his
material and spiritual flourishing and eschewed all painful or disadvantageous
choices. In more advanced discussions, ahliyyah involved not only the intellect
(aql) but also the body (badan). In other words, the concept of ahliyyah rested
on certain basic assumptions about intelligibility, rational and practical
judgment, and bodily capability.
As mentioned in the introduction, !anaf" jurists divided ahliyyah into
two types: the capacity to receive obligation (ahliyyat al-wuj#b) and the
capacity to perform obligation (ahliyyat al-ad%).
39
We find one of the most
lucid presentations of this division in K%s%n"s discussion of the obligation of
fasting and the majn#n:

Does aql constitute a pre-requisite of obligation, and are recovery [from
unconsciousness] and wakefulness [as opposed to sleep] also pre-requisites of
obligation? The majority of our authorities say that aql is not a pre-requisite of
obligation. The fasting during Rama*%n is obligatory on the majn#n, the
unconscious person, and the sleeping person. However, this is the essence of
obligation (a&l al-wuj#b) and not the obligation to perform (wuj#b al-ad%).
This is based on the fact that obligation is of two types. First, there is a&l al-
wuj#b, which binds one to the responsibility of fulfilling what is obligatory
(ishtigh%l al-dhimmah bi l-w%jib). This type of obligation is based on [the
possession of] the material means and not on [the comprehension of] the divine
address. Moreover, the total ability of the person is not a condition for the
soundness of a&l al-wuj#b, which is established as a mark of Gods sovereignty,
and the servant of God either affirms it or refuses it. Second, there is wuj#b al-
ad%, which consists of the performance of legal responsibility and the discharge
of obligation. This type of obligation is connected with [the comprehension of]
the divine address, as its pre-requisite is the total ability to comprehend it and to
perform everything required by it. The secret to this is that the divine address is
not directed toward persons who are either unable to grasp it or incapable to
perform everything required by it. The majn#n, due to the absence or
concealment of his intellect, and the unconscious person and the sleeping person,
due to the inaccessibility of their intellects, are incapable of grasping and
performing everything required by the divine address.
40



38
Nasaf", Man%r al-Anw%r, 145. Al-Ma$b#b" defined aql as the guiding light for the tendencies
and leanings of ones heart and conscience. The intellectual apparatus of the human being, he
claimed, yielded extra-empirical knowledge to the heart in the form of syllogistic propositions
and universals (Ma$b#b", al-Tanq"$, 521).
39
Bazdaw", U&#l, 4: 335; Sarakhs", U&#l, 531; Akhs"kath", Muntakhab al-Hus%m", 265; Nasaf",
Man%r al-Anw%r, 147; Ma$b#b", al-Tanq"$, 524.
40
K%s%n", Bad%i al-(an%i, 2: 591.
ALI ALTAF MIAN
258



K%s%n"s subsequent discussions on the same page revised these claims, and I
shall return to them, but first it is important to underscore the above passages
conceptual framework. With this explanation, K%s%n" at once included and
excluded the majn#n within the folds of ethical subjectivity. His gesture to
delink aql and wuj#b had deep theological implications. It implied that
humanity assumed responsibility not due to its intellectual prowess to grasp
Gods address (khi'%b), but because it had the material forms (asb%b) to
perform Gods commands. In other words, the human beings assumption of
obligation was not necessarily a rational choice. The ahliyyat al-wuj#ba&l al-
wuj#bwas another name for the general pact between God and humankind,
as mentioned in the Qur%nic verse: We did indeed offer the trust to the
heavens and the earth and the mountains; but they refused to bear it, being
afraid thereof. But man assumed it [the trust]. He was indeed unjust and
foolish.
41
Because of this universal pact, humanity in toto was obliged to
accept and embody the divine norms. Neither the child nor the majn#n were
exceptions to this rule. It was an expression of Gods sovereignty. Ahliyyat al-
wuj#b was also related to the concept of responsibility (dhimmah), which
characterized a human being from his or her inception.
42
It was by virtue of
dhimmah that even newborn babies had legal rights (e.g. the right of
inheritance).
43
Al-Dab#s" explained this in his discussion of ahliyyah:

Responsibility relates to the pact when considered in terms of language. God, the
Most High, entrusted the human being (al-ins%n) when He created him, and
blessed him with intellect and responsibility, and so thereby he became capable
of rights and duties (ahlan li wuj#b al-$uq#q lahu wa alayh). The rights of
protection, freedom, and ownership [$aqq al-i&mah wal-$urriyah wa l-
m%likiyyah] became confirmed for the human being, so that he may claim his
rights and fulfill his duties toward God, the Most High, who called these rights
and duties a trust [am%nah].
44


The trust was universal, placed by God on all humanity, and it implicated
particular individuals whether they liked it or not. The obligation toward the
divine norms was not contingent on personal freedom and intellectual
discernment, for it was due to obligation that God had granted the human
being freedom of choice and intellectual capacity to begin with.
45
Al-Dab#s"


41
Qur%n 33: 72.
42
Dab#s", Taqw"m al-Adillah, 417; Sarakhs", U&#l, 531.
43
Dab#s", Taqw"m al-Adillah, 417
44
Ibid.
45
Ibid.
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
259

provided the following example to illustrate his reasoning: Consider how the
ritual prayer is incumbent on the sleeping person and the majn#n, based on
our theory, as long as the jun#n lasts less than a day and a night.
46
For most
!anaf" jurists, ahliyyat al-wuj#b was always connected to the full span of a
human life, regardless of the existential conditions in which it was endured.
This obligation therefore could not disappear during brief moments or hours
of insanity or sleep, for it was the distinguishing trait of humanity.
47

In their discussions of ahliyyah, the jurists undermined aql, which was
generally considered the distinguishing trait of humanity. Al-Sarakhs" went so
far as to claim, As for aql, it is not found in man with respect to his
essence.
48
This was so because the distinguishing element of humanity was the
assumption of the divine pact, which had been too burdensome for other
existents.
The second type of ahliyyahthe capacity to perform obligation
occasioned full-fledged moral and legal responsibility. The jurists divided
ahliyyat al-ad% into two types: complete (k%mil) and deficient (q%&ir).
49
A
person with deficient ahliyyat al-ad% lacked the corporeal strength (quwwat
al-badan) needed to execute his or her legal responsibilities.
50
Sarakhs" provided
the example of the discerning child and the mat#h. He posited that although
both possessed the core of intellect (a-l al-aql) and the bodily strength to
act (quwwat al-amal bil-badan), they lacked it to an adequate degree. For
him, complete ahliyyat al-ad%, on the other hand, encompassed the ability to
comprehend Gods address (qudrat fahm al-khi'%b), which was possible only
with a sound intellect, and the ability to translate divine address into bodily
action (qudrat al-amal bihi wa dh%lika bil-badan).
51
The upshot of this
division of ahliyyat al-ad% was to insert the importance of age, reason, and
bodily capability in matters of legal responsibility. Sarakhs" went on to explain
that it would make no sense for God to bind in legal responsibility individuals
who cannot comprehend and embody the divine norms. For Sarakhs", legal
and moral responsibility (takl"f) was not meant to be burdensome, a lesson he
underscored by citing the Qur%nic line, God charges no soul beyond its
capacity.
52
To hold responsible persons lacking in comprehension and bodily
capability, explained Sarakhs", was tantamount to oppression and contradicted



46
Ibid.
47
Sarakhs", U&#l, 531.
48
Ibid., 541.
49
Ibid., 531
50
Ibid., 536.
51
Ibid.
52
Qur%n 2: 286.
ALI ALTAF MIAN
260

the Qur%nic teaching: God has no desire to make any impediment for you.
53

Our sources thus far have confirmed the splitting of ahliyyah into two
types. Some of the same sources, however, underscored that ahliyyah was in
fact nothing but the capacity to perform. At this juncture, we return to
K%s%n"s above discussion, which had affirmed two types of wuj#b. His
subsequent discussions presented a different picture:

The foremost of our authorities from Transoxiana state that in reality wuj#b is
only of a single type, which is the obligation to perform (wuj#b al-ad%).
Therefore, whomsoever is capable of performance is capable of obligation, and
whomsoever cannot perform is not capable of obligation. This is the choice of
my teacher, the grand and pious Im%m and Leader of the people of Sunnah Al%
al-D"n Mu$ammad b. A$mad al-Samarqand", may God be pleased with him. For
him, rational obligation is indeed the obligation of the act (li anna l-wuj#b al-
maq#l huwa wuj#b al-fil), such as the obligation of fasting, ritual prayer, and all
of the acts of worship. Whomsoever cannot perform the obligatory act, even if
he has the ability to grasp the divine address and perform what it requires of him,
does not assume obligation in any necessary way. The majn#n, the unconscious
person, and the sleeping person are incapable of [performing] the act required by
the divine address, which in this case is fasting. In divine norms, fasting is
equivalent to observing abstinence for the sake of God, and this is not possible
without intention. These aforementioned persons cannot make proper
intentions, and therefore they cannot perform the act. Consequently, they
cannot assume obligation.
54


As we can see, al-K%s%n" and al-Samarqand" emphasized that true legal capacity
consisted of the ability to perform particular acts. They were not concerned
with a universal human subject who preceded the spatial-temporal dimension
of the obligatory act. It seems that al-K%s%n" maintained al-Samarqand"s
position with consistency, as is evident from the formers following passage
from another chapter of the same text:

The performative utterances of the majn#n are all invalid. His pronouncements
concerning divorce, manumission, contracts with slaves to buy their freedom,
and confessions have no legal consequences. His buying and selling are not valid,
as well as his granting permission to others. It is not legally correct for a person
to accept a gift, a charitable donation, or a testament from the majn#n. The same
applies for the child until he reaches intellectual maturity. This is so because
ahliyyah is a pre-requisite for the validity of execution of duties, and there is no
ahliyyah without aql.
55



53
Ibid., 5: 6; Sarakhs", U&#l, 536.
54
K%s%n", Bad%i al-(an%i, 2: 591.
55
Ibid., 10: 87.
MENTAL DISABILITY IN MEDIEVAL HANAFI LEGALISM
261

Al-Samarqand" and al-K%s%n" therefore insisted on a strictly legal-theoretical
definition of ahliyyah. For the purpose of legal reasoning, they seem to have
argued, jurists cannot rely on the notion of a primordial pact between God
and a universal human subject. They resisted not this theological teaching
itself, but its purchase within legal theory. They were pragmatic legal theorists
who did not want to overdetermine the concept of legal capacity with
theological connotations.
Central Asian !anaf" scholars were therefore split on the universality and
the promise of obligation. Some jurists found it useful to distinguish between
receptive capacity and performative capacity. With the universal notion of
receptive capacity, these jurists included persons with mental disability in the
conceptual structure of ahliyyah. Others found the distinction unnecessary;
they spoke strictly about the performance of the obligatory acts. But what
does this mean for persons with mental disabilities? I propose that both
positions could offer us something useful for thinking critically and
compassionately about the legal personhood of the mentally disabled.
The emphasis on pure potentiality of the inclusionary position served to
place disabled persons within the folds of humanity (%damiyyah) and
responsibility (dhimmah). In this way, it was as if the divine address was
always waiting to be comprehended or embodied by those who lacked
comprehension or the bodily capability to perform the obligatory acts. This
position took the mentally disabled as potential recipients of the divine
address, emphasizing the generality of the divine pact with the universal
human subject. In this schema, the universal borders of legal personhood
enclosed the hinterlands of mental disability. On the contrary, the
exclusionary position resisted the universalization of wuj#b. It emphasized the
legal prose of practicality over the theological poetics of the divine pact with a
universal human subject. In effect, the exclusionary paradigm served to limit
the reach of the law, restricting it to those persons who had the mental
capacity and the bodily capability to understand and perform the obligatory
acts. With reference to disabled persons, the exclusionary position can be
compared to the Scottish psychiatrist R. D. Laings teaching on this subject.
Laing contends that persons with mental disabilities ought to be taken on their
own terms. The existential condition of such persons, he argues, cannot be
grasped through the methods of clinical psychiatry and psychopathology.
56

Instead, there may be benefit in non-intervention and letting mental disorders
run their course. While various arguments are plausible for the advantages and


56
R. D. Laing, The Divided Self: An Existential Study in Sanity and Madness (London: Penguin,
1990), 18.
ALI ALTAF MIAN
262

the disadvantages of both positions, medieval !anaf" fiqh was enlivened with
these internal differences of perspective. For better or for worse, at the heart
of both !anaf" positions was an ethic of care and a desire for the legal
protection of the mentally disabled.

Conclusion
!anaf" legal discourses treated mental disability under the sign of legal
capacity and responsibility toward the revealed norms. !anaf" jurists took the
intellect and the body as the two prerequisites of full-fledged capacity and
moral responsibility. For them, the intellect grasped Gods address to
humanity and the body performed the revealed norms. They underlined that
due to Gods compassion, God did not require persons lacking either in
intellect or in bodily capability to comply with the revealed norms. To their
advantage, the jurists did not conceive of an able body and a sound intellect in
mechanistic terms. They understood cognition and corporeality to be
contingent constructs. Their discussions of legal capacity and its impediments
resonate with Spinozas sage observation: The human body can be affected in
many ways by which its power of activity is increased or diminished; and also
in many other ways which neither increase nor diminish its power of
activity.
57
Most !anaf" scholars extended the capacity of obligationahliyyat
al-wuj#bto the child, the majn#n, the mat#h, and the comatose, among
others. In this way, ahliyyat al-wuj#b became a spacious and inclusionary
analytical category, and served as a conceptual asylum for those located at the
outskirts of the law.
58
While the jurists patronised the majn#n and restricted
their definitions of mental disability to cognitive defects (instead of emotive or
psychic disabilities), their general teachings advanced the Prophetic care and
compassion for the mentally disabled.

" " "







57
Spinoza, The Essential Spinoza: Ethics and Related Writings, trans. Samuel Shirley, ed. Michael
L. Morgan (Indianapolis, IN./Cambridge: Hackett, 2006), 62.
58
My understanding of asylum is indebted to Ranjana Khanna when she writes, Asylum,
conceptually and sometimes literally, becomes the condition of a possible link between concepts
of belonging and not belonging, like home and abroad, precisely because it stages the moment
of not belonging, and the arbitrariness of potential expulsion on the one hand or inclusion on
the other that cuts through such concepts. See, Ranjana Khanna, Asylum, Texas International
Law Journal 41 (2006), 475, see for details, 471490.