Baber Johansen

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consequences in both acts of worship and legal transactions. It
concentrates on the physical and intellectual qualities of human beings
that serve as "indications" (ÝalÁmÁt) for their capacity to act. If no proof
to the contrary is available, physical puberty (bulÙgh) is a sign that
renders probable the assumption that a person has acquired the reasoning
capacity to discern between different acts and calculate the probability of
their respective outcomes. Such a person is able to choose (ikhtiyÁr)
deliberately between different options. This capacity to discern and to
choose between different options is a sufficient condition for the capacity
to accept the obligation to perform legal acts in the realm of transactions
between human beings. It is also a necessary condition for those acts of
worship, such as prayer and fasting, that are considered bodily acts.
Choices always presuppose an open horizon of alternatives and an
undetermined decision by the actor. The action that results from
deliberate choice is contingent in a double sense: (a) its author could
have acted differently; and (b) no human being ever fully controls the
consequences of her choices. Unforeseeable and often unwanted effects
will unavoidably follow. 39 The law thus regulates the legal consequences
of contingent acts of individuals who have reached the age of puberty
and are considered capable of sound reasoning. Under these two
conditions their acts are imputable to them and they are responsible for
them. The complex theological discussions about the relation between
God’s power and knowledge and the human capacity to act play no
determining role for the form of the legal norms. In the fiqh literature,
legal acts that constitute personal obligations always presuppose a
responsible person, a rational actor, whose acts are imputable to her or
him. Whereas theology—since the tenth century—underlines God’s
omnipotence, the legal literature highlights the capacity of the rational
individual to take full responsibility for his acts. Consequently, irrational
actors, such as small children or the mentally ill, are not responsible
actors who can be obliged to perform personal legal obligations on their
own. They have to be represented by rational actors. This type of
representation is unproblematic in transactions between humans, but in
the cult it is restricted to two acts of worship, the pilgrimage (Îajj) 40 and
alms-tax (zakÁt). 41 When they come back to their senses, the mentally ill