By Anicée Van Engeland
The Islamic Republic of Iran is not spared from the increasing number of people suffering from Alzheimer’s. Yet, Shīʿī jurisprudence provides little insight into the status of such individuals under the law. Iranian civil law addresses the matter by declaring those suffering from severe Alzheimer’s as mentally incapable, prohibiting them from engaging with the law and placing them under guardianship. Iranian judges have the difficult task of assessing the mental health and capacity of citizens by relying on medical evidence, and must decide on guardianship (velāyat) or interdiction (hajr). Such decisions in turn impact divorce, wills, and other legal aspects of the person’s life. This article examines how Iranians suffering from Alzheimer’s are perceived under Islamic Shīʿī jurisprudence as interpreted by Iranian law and courts.
Alzheimer’s and the Law in Iran
According to classical Shīʿī jurisprudence, there are six types of incapacity that call for interdiction to engage with the law: minority, insanity, slavery, illness leading to death, bankruptcy, and mental alienation. However, there is a lack of precision when it comes to the concepts of insanity and mental alienation, as these concepts are not legally defined in Islamic Shīʿī law. This is because Islamic law is not concerned with defining where each mental health issue fits within each category.[1] Different words can be used to describe a state of insanity or mental alienation. Yet, it is necessary for lawmakers and judges to find ways of apprehending memory loss, confusion, personality changes, or dementia using existing laws on mental capacity, as Alzheimer’s constitutes a different ailment from psychosis and its legal effects should be apprehended differently.
It is up to the judge to reach a decision with regard to an individual’s mental capacity using medical evidence, knowing that there is a lack of guidance provided by classical Islamic law and modern-day Iranian law. There is indeed no legal definition provided in Iranian law for who is a “lunatic,” who in insane, or who has memory loss. In some cases, the concepts of insanity (majnūn) and mental derangement or mental deficiency (maʿtūh) can be used to refer to people suffering from Alzheimer’s. Yet there are, as explained above, no clear ways of making a distinction between a majnūn and a maʿtūh. As a result, these categories are vague and do not guide the judge in his decision to declare someone incapable and/or grant an interdiction and decide on guardianship. Classical and modern scholars have tried to provide clarity on the terminology attached to different mental health disorders, but Iranian law and courts have not sought to benefit from that approach, preferring to use a rather vague understanding of capacity.
Legal Capacity under Iranian Law
Although legal capacity is often referred to in the Iranian Civil Code,[2] no precise definition of the term is provided. To find a definition, one needs to look at classical Shīʿī legal thought: legal capacity (dimmah) is defined by puberty and by prudence/discretion/maturity (rushd). Only females above the age of 9 and males above the age of 15 can be capable. An individual is capable if they have all their reason (aql), which allows them to act prudently (rushd). This classical interpretation of capacity is supported by the Qurʾān, which states: “Observe the orphans through testing their abilities until they reach the age of marriage; then if you find them capable of sound judgment, hand over to them their property.”[3] This means that capacity is the state that a person has reached by/through puberty and mental maturity. Anyone who lacks capacity (or loses it) can be placed under interdiction (hajr). Accordingly, their affairs are then managed by a guardian. At this point, they are treated as a child and the Civil Code as well as case law often refer to them as “lunatics” or “children” or “immature.” The “lunatic” is an individual who has a mental illness that renders them incapable of sound judgment or rational behavior. It is also associated with a state of confusion and excitement. Anyone who deviates from reason[4] (called aql in Shīʿī jurisprudence) will be considered a “lunatic” as per the Civil Code. So the “lunatic” is the opposite of the rightly guided individual (rashid) or sane person (aqil). This all applies to the individual who suffers from severe Alzheimer’s, and could be considered as slightly problematic: should we quality an Alzheimer’s patient as a child, a “lunatic,” or immature? It is evident that someone who suffers from Alzheimer’s doesn’t have a behavior that falls into one of these categories. This vagueness, which is characteristic of the law touching on mental health in Iran, should be remedied so that appropriate legal responses can be found.
Interdiction under Iranian law
Hajr, or interdiction, is the act of imposing legal restrictions on an individual based on a capacity evaluation done by doctors and assessed by a judge. The legal acts of a person placed under hajr are null and void. Interdiction can be applied to those people who have partial or no capacity. In the case of Alzheimer’s, it is yet again the role of the judge, using medical evidence, to assess the degree of the neurological disorder and whether the individual should be interdicted. Being incapable is the most severe of all disabilities in Islamic law. It does not deprive the individual of a legal personality, but it restricts them quite heavily in their legal rights and duties. This is important given that mental health is actually a requirement to hold some public positions or jobs; an individual diagnosed with Alzheimer’s in Iran could quickly lose a job or be unable to participate to elections, raising issues of privacy. The one who is interdicted becomes a mahjūr. The mahjūr has to be accompanied by a guardian for any decision to be made on assets such as property and also for other legal acts such as marriage. A guardian is always appointed once the judge has declared that the individual is incapable. So, guardianship is linked to incapacity, and not to interdiction. It will yet again be the role of the judge to evaluate whether or not hajr is needed and whether or not a guardian is needed, by examining the progress of the neurological disorder.[5]
The concept of hajr has been in existence since the time of the Prophet (seventh century CE) and modern scholars have given it a contemporary meaning. For example, Jafari Langeroudi’s legal dictionary defines hajr as the “lack of proper conditions to possess and to implement a right which a person has, whether it is because of mental defects (for example, interdiction of a minor or the insane) or not (for example, interdiction of bankrupt and drunken ones).”[6] The interdiction that applies to people who are bankrupt or drunk is also called hajr. The vagueness of the terminology, yet again inherited from classical Shīʿī jurisprudence, needs reform: while it is clear that one who suffers from an advanced stage of Alzheimer’s could be interdicted and/or assisted when it comes to legal acts such as marriage or selling a property, the one who is bankrupt or suffers from a drinking addiction should be treated differently when it comes to legal effects.
The statutory basis for the concept of hajr is found in the Islamic Republic of Iran’s Civil Code Article 1207, which states:
The following persons are considered as under disability and are forbidden to take possession of their property and their pecuniary rights:
1 – Minor children.
2 – Persons who have not matured.
3 – Lunatics.
Article 1208 helps to clarify the concept: “the words ‘persons who have not matured’ is meant [to refer to] persons whose method of dealing in their property and rights is not in accordance with reason.”
Article 1210 explains that “no one, when reaching the age of majority, can be treated as under disability in respect of insanity or immaturity unless his immaturity or insanity is proved.”
Article 1211 adds that “lunacy, to whatever degree, incurs disability.”
There is no definition of lunacy provided in the Civil Code. The process to declare someone as such begins once a petition has been made to the court. This explains why there are many mentally immature adults or even insane adults in Iran who work and get married without being monitored by the authorities. Families are usually reticent to go to court to have a state of immaturity or a state of lunacy declared. Usually, they prefer to handle the situation by themselves. They are also afraid of the social stigma of having a family member declared incompetent in court. This reluctance to engage with the law early on can cause problems later down the road: families who have not gone to a judge to seek an interdiction or guardianship when the patient was initially diagnosed with Alzheimer’s often find themselves struggling with wills and property transfers in the aftermath of a death.
Rights/Duties Attached to Legal Capacity
Iranian scholars draw an important distinction between having rights and being able to exercise those rights. This distinction is based on the Civil Code Article 956, which states that “the capacity to possess rights begins with the birth of a human being and ends with his death.” Article 958 adds that “every human being is entitled to civil rights but nobody can utilize and employ these rights unless he possesses legal capacity for so doing.”
It is only upon full development of their intellectual abilities that an individual can understand the communication of God (mukallif). The person is then ahliyyah, which means fully capable. At that stage, the individual acquires legal rights but also undertakes legal duties. This distinction means that an incapacitated individual keeps his or her legal personality if interdicted, but might not be able to enforce their legal rights and obligations; this is why a guardian is appointed. The guardian’s role is to ensure that the incapacitated person placed under hajr can have his/her legal personality protected and rights enforced.[7]
Legal Consequences
Acts by an insane individual are without effect.[8] As a result, the individual struck with majnūn cannot be accountable for any of his acts that are called junūn. This principle is to be found in Article 212 and Article 213 of the Civil Code. Concretely, this means that the acts of someone who is majnūn and is interdicted are rendered null and void (bātil). For example, a contract between an insane person and a sane person or a gift given by an insane person is considered invalid.[9] It is expected that the guardian of the majnūn will accompany him or her during such interactions or when dealing with the government.[10] This obviously protects patients suffering from Alzheimer’s from legally committing to actions that would harm them. Yet again, the lack of proper definitions presents a problem: Alzheimer’s is a degenerative disorder that progress differently, affecting memory, judgment, and the ability to function. There are stages in the disorder, stages that must be considered by the law for the proper legal solution to be found in cases of contractual law, criminal law, or family law.
It is sometimes felt that there is a contradiction in the interdiction. A person under interdiction, for instance, cannot perform any form of transaction but needs his/her guardian for a transaction to be valid. This tension is the outcome of Article 1213 of the Civil Code which states, “A permanent lunatic and a periodical lunatic in his state of lunacy cannot make any intervention whatever in his property and his pecuniary rights even with the permission of his guardian.” Article 1214 continues:
Transaction and legal acts performed by a person not of age are not binding except with the permission of his natural guardian or his guardian, whether the permission has already been given or will be given after the transaction is made. Never the less, all kinds of possessory acts against no consideration are binding even without permission.
There is actually no contradiction between these articles: 1213 is the rule and 1214 is the exception. Thus, in situations where an incapacitated person who is under hajr performs a legal act, the guardian’s authorization is needed, even if it is ex post facto.
Notes:
[1] Vardit Rispler-Chaim, Disability in Islamic Law (Dordrecht: Springer, 2007), 65.
[2] For example: Article 211 of the Iranian Civil Code: “In order that a contract may be valid both parties to it must be of age, must be in their proper senses and must have reached puberty”; Article 212: “A transaction between people who are not of age, nor in their proper senses nor mature is invalid because of their incompetence”; Article 213: “A transaction made by incapacitated persons cannot be valid.”
[3] Qurʾān 4:6.
[4] Rispler-Chaim, Disability in Islamic Law, 64.
[5] The role of guardian is often entrusted to a male relative (Civil Code Article 1232: “The relatives of the person under capacity shall have priority over others in the matter of guardianship, if they are competent.”) The selection of a guardian rests with the Public Prosecutor, on the basis of a pre-selection made by the Department for Guardianship (Administration of Justice Act Article 16). The Public Prosecutor will oversee all the guardian’s actions (Civil Code Article 1247). The guardian can be discharged for dishonesty.
[6] Mohammad Jafar Jafari Langeroudi, Terminology of Law (Tehran: Ganje Danesh, 2012),1635.
[7] S. H. Safaei, Civil Rights (Tehran: Mizan Publication, 2010).
[8] Jamal J. Nasir, The Islamic Law of Personal Status (London: Graham & Trotman, 1990), 211.
[9] Peri Bearman, The Ashgate Research Companion to Islamic Law (London: Routledge, 2013), 6.
[10] Rispler-Chaim, Disability in Islamic Law, 64.