Inconsistencies in the Ḥanafī School's View of Children's Legal Competence

: This article examines the inconsistencies of the Ḥanafī school of thought regarding the legal capacity of children. The study of this issue is to prove whether or not there is harmony between the legal istinbat method ( ushul fiqh ) used and the legal product ( fikih ) created. In fiqh proposal it is determined that children do not have legal capacity so they are freed from all forms of legal imposition ( taklif ). The problem studied is the inconsistency of children's legal skills and arguments against this problem. This paper is based on qualitative data in the form of books on ushul fiqh and fiqh of thought from the Ḥanafī school of thought. Data is given meaning through verstehen, namely understanding by using a divergent, creative, and innovative mindset so that deeper meaning is found. After that, the data was analyzed using content analysis, namely taking inventory of data, simplifying it, and generalizing it. This is done interactively between the three components; data reduction, data presentation, and data verification. The results of the research show that there is an inconsistency in the Ḥanafī school of thought regarding legal competence. Inconsistency is seen in three ways; the standard has been and has not been the functioning of reason related to the age phases of the child, determining the impact of the benefits and harms contained in legal actions, and the scope of legal subjects. Thoughts on the legal skills of children other than the Ḥanafī school of thought which have not been studied in this paper need further research.


Introduction
The exegeses of the Qur'an offered by major Islamic scholars (ulama) often spark controversy in society.This can be seen, for example, in the inconsistency with which the Ḥanafī school views the legal competence of children.In the Ḥanafī approach to fiqh, children are seen as having legal competence in some provisions but not others.Further complicating this issue and creating confusion, different age limits are found in different provisions.In Indonesia context, a third factor exacerbates the situation, the standards for legal competence provided by the national legal code differ from those offered by Islamic jurisprudence.Recognizing that small Indonesian Muslims follow the Ḥanafī school, it is important to seriously consider the inconsistencies in that school's understanding of children's legal competence.
Generally speaking, the literature on the legal competence of children falls into three categories.In the first, studies examine the mental aspects of 1336 competence,1 including the cognitive capacity of individuals, 2 the legal competence of disabled persons, 3 and the legal competence of children in childcare. 4Studies in the second category focus on the legal competence of girls. 5In the third category, studies of children's legal competence concentrate on age. 6This literature has highlighted how different age categories interplay with the legal competence of children, as understood by Islamic jurisprudence.
No study to date has examined the inconsistencies in the Ḥanafī school's understanding of children's legal competence.The current article seeks to fill this gap by exploring the Ḥanafī school's view of children's legal competence, mapping cases of inconsistency and analyzing their causes.Central to this discussion will be two research questions: (1) how is the legal competence of children viewed inconsistently by the Ḥanafī school?and (2)  what inconsistencies exist in the Ḥanafī school's view of the legal competence of children?
This article departs from the assumption that, according to the principles of Islamic jurisprudence, children have no legal competence.As a result, children are free from all taklīf (legal burdens), but also not obligated, allowed, or permitted to do legal acts. 7However, inconsistency is evident in Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin  DOI: 10.22373/sjhk.v7i3.16585  the Ḥanafī school's view of children's legal competence.This is evident in two main areas: the standards for determining mental competence vis-à-vis the rights of Allah (ḥuqūqullāh) and the rights of humanity (ḥuqūq al-'ibād) and the standards for identifying the benefits or dangers inherent in legal acts.These elements may be viewed within the context of children's development: before the age of discernment (ṣabī ghayr mumayyiz), after the age of discernment (ṣabī mumayyiz), and the age of majority (bāligh).
The Ḥanafī school is one of the four schools of thought (maddhab) that guide Islamic jurisprudence.The Ḥanafī school, identified with ra'yi (rationalist) thought, often differs from other schools, both traditionalist (madhhab ahlul hadīth) and moderate (between ahlur ra'yi and ahlul hadīth). 8Within the context of the research questions, it is important to highlight the inconsistencies between the Ḥanafī school and other maddhab.It is due to these differences that the Ḥanafī school's understanding of the legal competence of children is interesting to study, especially given that these inconsistencies have been controversial within the Muslim community.
Primary and secondary data were collected for this study.Primary data were collected from Ḥanafī texts that were deemed representative, including texts on ushul fiqh and fiqh.As noted by Ibrahim 9 , the exemplary text of ushul fiqh from the Ḥanafī school is Kitāb Uṣūl al-Sarakhsī (w.483 H).Meanwhile, according to Mahmasani, 10 Ḥanafī views of fiqh are best represented by texts such as Kitāb al-Mabsūt by al-Sarakhsī (w.490 H), Kitāb Badā'i' al-Ṣanā'i' fī Tartīb al-Syarā'i' by al-Kāsānī (w.587 H), and Kitāb Radd  al-Muḥtār 'Ala al-Durr al-Mukhtār Sharḥ Tanwīr al-Abṣār by Ibnu 'Abidin  (w.1252 H).Secondary data, meanwhile, were collected from studies of Ḥanafī thought, ushul fiqh, and fiqh, as related to children's legal competence.All of these data were necessary for this qualitative study.
This study seeks to understand a particular phenomenon through careful data collection and honed analysis.Data collection and analysis were conducted through analysis and reflection/comparison.This study began with a desk review of primary and secondary sources, after which 'core' texts were identified and selected.These core texts were used to understand Ḥanafī thoughts regarding usul fiqh and fiqh.After texts were selected and their contents mapped, analysis was conducted through verstehen, thereby using divergent, creative, and innovative analysis to understand texts from their own point of view.In this manner, the explicit and implicit meanings of the texts were identified and associated with their broader contexts, thereby obtaining a deeper and broader meaning.11

Ḥanafī School and Children's Legal Competence in Islamic Law 1. Inconsistency in the Ḥanafī School
To date, no study has specifically investigated the inconsistencies in the Ḥanafī school's understanding of children's legal competence.Studies of the Ḥanafī school have, for example, explored how Imam Abu Hanifah ascertained the authenticity of hadiths -especially ahad hadiths (i.e., those hadiths eported by only a few people)-and used these hadiths as the basis for jurisprudence.Most imams have been cautious when using Hadiths as the basis for legal consideration, paying particular attention to their transmission. 12Ḥanafī imams, meanwhile, commonly use mursal hadiths (i.e., hadiths that omit the narrator) as legal references, suggesting that the chain of transmission (sanad) is of little importance to them.Conversely, when dealing with aahad hadiths, Ḥanafī imams place great emphasis on transmission.This indicates an inconsistency in their approach to jurisprudence. 13ne inconsistency in Ḥanafī jurisprudence lies in its approach to the debts of the recently deceased.Most ulamas hold that the debts of the deceased must be paid in full before the estate is divided amongst the heirs.Ulamas of the Ḥanafī school, meanwhile, believe that heirs are not obligated to pay the debts of the deceased.Repaying such debts is understood as a form of worship; as such, any obligation ends with the death of the indebted. 14In regards to apostasy and inheritance, Ḥanafī views also differ from those of other schools.Ulamas of the Maliki, Syafi'i, and Hanbali schools hold that Muslims may not bequeath their property to family members who have left Islam, as through their apostasy they have become kafir (unbelievers).Ḥanafī ulamas, meanwhile, hold that Muslims may leave property to family members. 15

Legal Competence of Children
Masson 16 defines children's rights as human rights that are suited to the specific conditions of children, including their particular vulnerabilities, characteristics, and needs.Children's rights, thus, have two components.First, children have the same human rights as adults, including the right to nondiscrimination and freedom of expression as well as civil, health, education, social, and economic rights.Second, children have specific rights designed to protect them from violence and exploitation. 17Historically, legal decisions that affect children have often been made without involving them as legal subjects, as children are commonly perceived as lacking the social and cognitive abilities needed. 18As such, children require specific legal protections until they reach the age of majority.
In Indonesia, there are no fixed standards regarding the age at which children may be deemed legally competent. 19Owing to this lack of uniformity, problems are common when ascertaining whether children are legally competent.As noted by, 20  years while the Compilation of Islamic Law stipulates that the age of marriage is 19 years for men and 16 years for women. 22According to several legal rules that legal competence is required for individuals to carry out legal actions.Only once individuals reach the age of majority, and thus are assumed to have legal competence, do they have the authority to fulfill their rights and obligations and to participate in legal acts.

Inconsistency in Islamic Law
Fiqh is the field dealing with what is permissible and prohibited in Islam, as well as more general matters of sharia (Islamic law) and its precepts. 23Fiqh provides ulamas with a system for understanding how Muslims are expected to behave and act, as well as references to consider before passing judgment and issuing fatwas. 24As such Iskandar describes, 25 fiqh as Islamic jurisprudence, as human understandings of divine truths revealed through the Qur'an and the Sunnah (the collected teachings and practices of the Prophet Muhammad).Scholars of fiqh, known as fuqaha, have significant authority in Muslim communities.Where those in power are Muslim, they must follow the instructions of the fuqaha to ensure that their laws are implemented in accordance with Islamic teachings.Khumayni describes that fuqaha as representatives of the Prophet.According to Hakim,26 only fuqaha can ensure that Islamic ideals are realized in the implementation and enforcement of laws, thereby ensuring the integrity of the community and the nation.
To ensure that everything reflects Islamic values, a fuquha must closely follow the principles of Islam.As stated by Alam Rizvi, 27 in implementing Islamic law, a faqih must closely adhere to the Qur'an and Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin DOI: 10.22373/sjhk.v7i3.165851341 Hadiths while simultaneously allowing space for ijtihad (individual interpretation).When a faqih considers only the worldly, he cannot represent the Prophet or act justly.In practice, however, there are often inconsistencies between the decisions of fuquha and Islamic doctrine.One article exploring the inconsistencies and incoherencies in Islamic inheritance law was penned by Khalid.28Fuqaha, Khalid writes, have long employed a patrilineal approach when determining the kinship of heirs who are not directly related.Women who are distantly related to the deceased may only receive an inheritance when there is no ashab al-furud nasabiyyah or other ashab.As such, the grandparents, brothers, and sisters of mothers, as well as the grandchildren born to daughters, are deemed dhawi al-arham.This is problematic, however, where the Qur'an allows all kin (including those along the matrilineal line) to receive an inheritance.Where fuqaha acknowledge that family members along the matrilineal line may receive an inheritance, they only allow a smaller share.
Inconsistency is also evident in various schools' understanding of children's legal competence.According to the Syafi'i and Hambali schools, as well as many in the Maliki and Ḥanafī schools, children gain legal competence at the age of fifteen.For followers of the Dzahiri school, meanwhile, the age of majority is 19 years.29

Children's Legal Competence in the Ḥanafī School's
The inconsistencies in the Ḥanafī school's understanding of children's legal competence are evident in two points.First, the standard for understanding the ability to think rationally and realize divine rights (ḥuqūqullāh) and human rights (ḥuqūq al-'ibād).Second, the ability to ascertain the benefits and dangers inherent to legal acts.This will be detailed below.

Inconsistency Regarding Rational Thought
The first inconsistency lies in the understanding of children's ability to think rationally.Ulamas of the Ḥanafī school divide children's legal competence into three categories, based on their mental development: before the age of discernment (ṣabī ghayr mumayyiz), after reaching the age of discernment (ṣabī mumayyiz), and the age of majority (bāligh).Each has its Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin DOI: 10.22373/sjhk.v7i3.16585legal consequences.Before reaching the age of discernment, children are held to be incapable of rational thought ('adam al-'aql).After reaching the age of discernment, children are seen as having a rational mind that is only beginning to develop (nuqṣān al-'aql).Finally, children who have reached bāligh are believed to have a fully functional rational mind (kamāl al-'aql). 30nconsistencies in how the Ḥanafī school views the legal competence of children before the age of discernment (ṣabī ghayr mumayyiz), are evident in the distinction between ḥuqūqullāh and ḥuqūq al-'ibād.In legal acts associated with ḥuqūqullāh, children before the age of discernment are considered to not have legal competence.Their words have no legal consequences, and their deeds receive no legal sanctions.Before the age of discernment, children are not required to have faith or conduct worship, be it through physical acts (badaniyah) or property (māliyyah).Before the age of discernment, children are not required to pray (salah), give alms (zakat), fast during Ramadhan, or undertake the hajj pilgrimage.In criminal law, likewise, ṣabī ghayr mumayyiz do not have legal competence, and thus cannot be subjected to qiṣāṣ, ḥudūd, or ta'zīr (be it as punishment or as a teaching tool).In such matters, the wali (guardian) may not replace them and undertake legal action in their name (adā' al-wali laysa ka'adā'ihi).Meanwhile, in matters of ḥuqūq al-'ibād, children who have not reached the age of discernment are deemed to have legal competence.As such, ṣabī ghayr mumayyiz are required to replace all material goods that they have damaged or lost.This is permitted, as the lost objects are deemed the child's property rather than acts in which the children can be represented (adā' al-wali ka'adā'ihi). 31hildren who have reached the age of discernment, meanwhile, are seen as having minds that are still developing, and thus they do not have full  Arabi, 1998), p. 477-82.Muhammad Abu  Zahrah, Ushul Al-Fiqh (Beirut: Dar al-Fikr al-Arabi, 1913), p. 333-34.Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin  DOI: 10.22373/sjhk.v7i3.16585legal competence.Nevertheless, they are allowed to do some legal acts.In ḥuqūqullāh, ṣabī mumayyiz are deemed to lack legal competence (la wujūb aladā') to be compelled to undertake physical worship such as salah, fasting, and the hajj pilgrimage; however, they are permitted to do so, and their worship is considered valid (ṣiḥḥah al-adā').As such, they count toward the minimum number of congregants necessary for congregational prayers to be deemed valid, except Friday prayers, for which they are not counted.In matters of criminal law, ṣabī mumayyiz who do criminal acts are not required and may not be subjected to had and qiṣāṣ as punishment.They may, however, be subjected to ta'zīr, i.e., preventative measures and corporal punishment. 32abī mumayyiz are viewed as having legal competence in matters of ḥuqūqullāh, mostly in worship through property (māliyyah) rather than pure (mahdah) worship.As such, children who have reached the age of discernment must pay zakat fitrah when they receive property from their wali.Likewise, when sabī mumayyiz commit a crime for which qiṣāṣ (retributive justice) is required, they are compelled to pay diyat (a material fine).If the amount expected is more than a third of the entire fine, this burden must be borne by the family; if the amount to be paid is less than a third, the burden must be borne by the ṣabī mumayyiz. 33inally, upon reaching the age of majority (bāligh), children are viewed as having fully developed rational minds (kamāl al-'aql).In the Ḥanafī school, adulthood can be ascertained based on one of two factors: 'alāmah (signs) or age.For male children, the main markers of adulthood are iḥtilām (dreams of sexual intercourse) and the ability to impregnate someone; these normally occur around the age of twelve.For female children, meanwhile, the main markers of adulthood are menstruation, iḥtilām, and the ability to be pregnant; these occur after the girl has reached the age of nine.Where such Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin  DOI: 10.22373/sjhk.v7i3.16585signs of adulthood do not occur, adulthood is determined by age: seventeen for girls and eighteen/nineteen for boys. 34pon reaching bāligh, children are viewed as having fully developed minds.As such, all legal obligations are theirs, both in matters of ḥuqūqullāh and ḥuqūq al-'ibād (wujūb al-adā').Children who have reached the age of bāligh are required to bear all legal burdens, including salah, fasting, and the hajj pilgrimage.Where children who have reached the age of majority commit a crime, they may be subjected to qiṣāṣ, ḥudūd, and other punishments.At this age, children are accountable for all legal acts, both civil and criminal. 35

Inconsistency in Prohibitions against Children doing Legal Acts
Second, there is inconsistency in prohibitions against children doing legal acts (ḥukm al-ḥijr).Such prohibitions fall into two categories: prohibitions related to property and prohibitions related to the tasarruf of property.Inconsistency can be seen, for example, in the prohibition against giving property to children who have yet to reach the age of discernment, as they are deemed to lack the legal competence necessary.Giving property to ṣabī ghayr mumayyiz is equated to damaging or wasting that property.Sabī mumayyiz, meanwhile, are considered to have some legal competence, and thus may be given property as their rational minds emerge.Wali may also allow ṣabī mumayyiz to undertake mercantile activities as a means of testing them. 36wo forms of tasarruf are acknowledged in matters of property: legal acts associated with qawliyah (words) and legal acts associated with fi'liyyah (deeds).The permission to do a legal act is informed by its benefits and/or dangers.Legal acts fall into three categories: purely beneficial, purely dangerous, and containing both benefits and dangers.Inconsistencies are evident in the consideration of these values.For ṣabī ghayr mumayyiz, there is no such consideration, and thus children of this age have no legal Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin  DOI: 10.22373/sjhk.v7i3.16585competence.Ṣabī ghayr mumayyiz may not, for instance, commit talak (divorce), free slaves, make an iqrār (legal confession), or conduct transactions, even with the permission of their wali.Likewise, they may not receive hibah (gifts), sadaqah (alms), or wasiat (inheritances).Where such acts are committed, they are deemed invalid, as children of this age lack the legal competence (ahliyyah) necessary. 37eanwhile, the legal competence of ṣabī mumayyiz depends on the type of legal act involved (i.e., wholly beneficial, wholly dangerous, or containing both benefits and dangers).If a legal act is wholly beneficial, then ṣabī mumayyiz are considered to have legal competence.Ṣabī mumayyiz may accept gifts and alms, and such acts are valid.If an act solely contains ḍarar (danger, harm), then ṣabī mumayyiz lack legal competence; as such, they may not give gifts, alms, or inheritances, and any such acts are invalid.The permission of the wali has no bearing, as where the wali may act in the child's stead.Finally, where a legal act contains both benefits and dangers, ṣabī mumayyiz may act with the permission of their wali.As such, children of this age may conduct business transactions, work together to irrigate crops, rent property, and make/take loans, so long as they have permission.Children without a wali have the full authority to make their own decisions. 38eanwhile, for acts that are categorized as fi'liyyah, all children are deemed legally competent, no matter their developmental stage.Children, even those classified as ṣabī ghayr mumayyiz and ṣabī mumayyiz, are expected to be responsible for their deeds.If a child commits ghasab and damages the property of another, that child is required to replace the property. 39nce children reach the age of majority, all of the above prohibitions become null and void.This includes the prohibition against doing things that incapable of rational thought (i.e., children who have not reached the age of discernment) must by definition have no legal competence.As such, ṣabī ghayr mumayyiz who lose or damage the property of others must not be expected to replace it.
The second inconsistency lies in the benefits and dangers associated with legal acts.In this, the Ḥanafī school distinguishes between children who have not reached the age of discernment (ṣabī ghayr mumayyiz) and children who have reached the age of discernment (ṣabī mumayyiz).Ṣabī ghayr mumayyiz are viewed as having no legal competence, no matter the benefits or dangers inherent to the act.Meanwhile, for ṣabī mumayyiz, legal competence depends on the benefits and dangers that are inherent in the legal act.Where something is deemed purely beneficial, children who have reached the age of discernment have the legal competence to act.Where something contains both benefits and dangers, sabī mumayyiz may act with the permission of their wali.Finally, in purely dangerous matters, ṣabī mumayyiz have no legal competence, even if they obtain the permission of their wali.Such distinctions are highly subjective and prone to change; acts that were previously deemed entirely beneficial could ultimately become dangerous.For example, if a child does not use a gift that has been received, this may be understood as isrāf (acting in excess) and tabdhīr (squandering property), both dangers that should be avoided.
These inconsistencies in the Ḥanafī school's understanding of legal competence suggest that the principles of Islamic jurisprudence have not been realized in practice." (legal burdens are absolved for three groups: first, children who have not reached bāligh…) promotes the view that children should bear no legal burdens and thus have no legal competence.However, this hadith has not been applied for ṣabī ghayr mumayyiz in matters of ḥuqūqullāh or for ṣabī mumayyiz in other matters; children in these categories are seen as having a degree of legal competence.In matters of ḥuqūq al-'ibād, meanwhile, this hadith is applied solely to purely dangerous acts.Where acts are purely beneficial, meanwhile, this hadith is not applied, and thus ṣabī mumayyiz are perceived as having legal competence.Conversely, in matters of worship, the above-mentioned hadith is also applied to legal acts that are purely beneficial (salat, zakat, fasting, and the hajj pilgrimage), and in such matters children are seen as lacking legal competence.
Existing studies have yet to specifically examine the inconsistencies in the Ḥanafī school's view of children's legal competence.This study's innovation, thus, lies in its exploration of these inconsistencies.From the discussion in this article, it is increasingly apparent that Ḥanafī views Inconsistencies in The Ḥanafī School's Moh.Fauzi and Nazar Nurdin  DOI: 10.22373/sjhk.v7i3.16585http://jurnal.ar-raniry.ac.id/index.php/samarah1348 regarding children's legal competence must be reconsidered.It is necessary to consider both physical and spiritual maturity, where clear standards are set, it will no longer be necessary to distinguish between matters of ḥuqūqullāh and ḥuqūq al-'ibād or consider the benefits and dangers of legal acts.

Conclusion
This article has shown that the Ḥanafī school's understanding of children's legal competence.These inconsistencies may be attributed to two points: the identification of children who have not reached the age of discernment as 'adam al-'aql (incapable of rational thought) and children who have reached the age of discernment as nuqṣān al-'aql (only beginning to develop rational thought), and consideration of the benefits and dangers of legal acts.Inconsistency has occurred because the legal competence of children is ascertained through abstract and subjective means, without any clear and objective standards.State and religious laws both claim their own truths, and this further exacerbates existing inconsistencies.Concrete and objective standards must be set, i.e., an age at which physical and mental maturity has been reached.Clear rules and understandings will minimize inconsistencies and limit debate between fuquha.This study of the texts of the Ḥanafī school has found inconsistencies in its treatment of children's legal competence.This exploration of Ḥanafī school texts on the principles of Islamic jurisprudence has also found that legal competence is achieved at different ages.Ḥanafī scholars and fuquha identify legal competence as being achieved at different ages.However, such a dichotomy does not mean that Ḥanafī thought is inaccurate.Rather, it may be attributed to scholars having different exegeses of texts and disagreeing on the correct interpretation.Further data should be collected from secondary sources to better understand the inconsistencies in Ḥanafī thought and the factors that cause them.

Inconsistencies in The Ḥanafī School's
several standards may be referenced: 1) the age of majority set by Article 330, Paragraph (1), of the Indonesian Civil Code (age 21); 2) the age of majority set by Law No. 2 of 2015 regarding Notary Publics (age 18); 3) the age of majority set by Law No. 13 of 2003 regarding Labor (age 18). 21Likewise Law No. 11 of 2012 concerning the juvenile justice system and Qanun Jinayat in Aceh 2014, the age limit for adulthood is 18 Moh.Fauzi and Nazar Nurdin DOI: 10.22373/sjhk.v7i3.16585