The Child as Legal and Moral Subject: Authority, Protection, and Responsibility in Premodern Islamic Jurisprudence

Abstract

This study explores the legal, moral, and social subjectivity of the child in premodern Islamic jurisprudence, challenging the conventional Eurocentric historiography which posits that the "concept of childhood" is a modern Western construct. Contrasting sharply with historical legal systems such as Roman law, where paternal power (Patria Potestas) treated children as passive property, premodern Islamic law recognizes the child from the foetal stage as a distinct, rights-bearing legal subject (Dhimmah).

The paper provides a close textual and comparative analysis of the four Sunni schools (Hanafi, Maliki, Shafi'i, and Hanbali) and the Ibadi tradition, tracing the progressive and systematic development of a child's legal capacity (Ahlīyah). It distinguishes between receptive capacity (Ahlīyah al-Wujūb), which is complete from birth, and active execution capacity (Ahlīyah al-Adā'), which evolves from zero in the undiscerning stage (Ṣabī ghayr mumayyiz) to deficient in the discerning stage (Ṣabī mumayyiz) and culminates at puberty (Bulūgh) combined with financial prudence (Rushd).

Furthermore, the paper examines how the institutions of guardianship (Wilāyah), custody (Ḥaḍānah), and financial maintenance (Nafaqah) establish a sophisticated equilibrium between parental authority and child protection. Crucially, it demonstrates that premodern jurists prioritized the "welfare of the child" (Maṣlaḥah) as an overriding constitutional principle, rendering custody a fundamental right of the child (Ḥaqq al-Maḥḍūn) rather than a parental privilege.

Finally, the study analyzes the conceptual boundary between a minor’s moral subjectivity (being encouraged to practice worship) and legal/penal liability (Taklīf), from which they are completely exempt. This research underscores that premodern Islamic jurisprudence constructed a highly resilient legal fortress around minority (Ṣighar), not to suppress the child's agency, but to protect and nurture their evolving legal personality.

Keywords: Ahlīyah (Legal Capacity); Ṣabī Mumayyiz (Discerning Minor); Rushd (Prudence); Wilāyat al-Māl (Property Guardianship); Ḥaḍānah (Child Custody); Maṣlaḥah (Best Interests of the Child); Premodern Islamic Jurisprudence.