View source for Nature of Diya

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* '''abstract'''
Exploring the nature of [[diya]] is the issue required by [[common law]] and transformation of [[Jurists' Law]] to [[Statutory Law]] to clarify whether [[diya]] is based on [[damages]], [[punishment]] or something else. There are four theories in this regard: [[diya]] as a [[punishment]], as [[compensation for damages]], as [[compensation by mutual consent]], and the [[integrated view]] (as [[compensation for damages]] and [[punishment]]). 

Jurisprudential arguments and conclusions are provided for each of the four theories of [[punishment]], [[compensation for damages]], [[compensation by mutual consent]] and the [[integrated view]]. It is commonly believed that [[diya]] is [[compensation for damages]], and [[Yusuf Sanaei]], [[Hussein Ali Montazeri]] and [[Abul Qasim Gurji]] are among the [[jurists]] who believe in this view. To prove this, it is argued that the application of [[qisas|retaliation]], even in cases of [[intentional homicide]], depends on the will of the [[avengers of blood]] because it is like the theft of human rights and is different from [[adultery]], which does not require anyone's claim; therefore, [[diya]] is [[compensation for damage]].  
On the other hand, in order to prove that [[diya]] is a [[punishment]] as stipulated in the [[Islamic Penal Code of Iran]], the [[punitive function]] of [[diya]] as a main feature of [[punishment]], or the [[legalization]] of [[diya]] for committing a crime against the deceased, and the [[intensified diya in Haram]] (sacred) months are cited. Supporters of this view regard these cases consistent with the perception of [[diya]] as [[punishment]].  

To prove the [[integrated view]], that [[Naser Makarem Shirazi]] supports it, it is stated that [[diya]] is both a [[punishment]] and [[financial compensation]] for victim loss; hence, [[diya]] is both a [[punishment]] to prevent murder and [[financial compensation]].  

Concerning [[diya]] as [[compensation by mutual consent]], it is argued that while [[compensation]] is an important purpose of legislating [[diya]], it is not the only one; what is more important is to obtain the consent of the [[victim of an offence]] and [[avengers of blood]]. According to [[Ahmad Fathi Behansi]], [[diya]] may only put out the flames of anger and hatred in the heart of the [[victim of an offence]] and his relatives, and, thus, it aims at obtaining consent.

==Position and significance==
The discussion about [[diya]] is more of a [[legal nature]] than [[jurisprudential]] one. Muslim [[jurists]] have sought to make clear the place of [[diya]] within recognized [[legal categories]]. [[Common law]] relies solely on [[compensating a damage]] and [[punishment]], and separate effects are imposed on each of them. Thus, when a concept is beyond these two categories, the effects become to realize. [[Jurists]] believe that for a [[legal system]] to be justifiable, it must be explicable by a [[rational mind]], and if [[diya]] is not attributed to one of the systems of [[damage]] or [[punishment]], it cannot be justified by a [[rational mind]].

Discussion on the nature of [[diya]] has been of [[legal nature]] among Muslim [[jurists]]. From a [[jurisprudential point of view]], such discussion aims at discovering the purpose of [[legislating diya]] to see whether the purpose of establishing this system is to punish one who has violated the bodily integrity of another person, or to compensate the harm incurred to the victim, or both; or some other purpose is intended beyond the above-mentioned considerations.  
Knowing the purpose of [[legislating diya]] can influence the conclusions to be reached by [[jurists]]; because, although [[Shi'a jurisprudence]] often revolves around [[texts and rulings of the ancients]] and questions about the nature and purpose of things are not easily allowed, but with the shift from [[jurisprudence]] to [[law]], questions arise about [[diya]] that cannot be answered or are difficult to answer without knowing its nature and purpose. By solving this problem, many issues can be resolved including: compensations beyond the amount of [[diya]], the cost of disability, inequality of men’s and women’s [[diya]], inequality of Muslims’ and non-Muslims’ [[diya]], the alleged conflict between [[diya]] and [[human rights standards]], the payer and receiver of [[diya]], fixed or changing nature of amounts and cases of [[diya]], the effect of social changes on [[diya]] and whether they are considered as [[acts of worship]] or not, forsaking or reduction and increase the amount of [[diya]] by the state or the victim and the [[avengers of blood]].

==Various opinions on the nature of Diya and the related jurisprudential effects==
Muslim [[jurists]] have put forward various views to answer questions about the nature of [[diya]], four of which are significant. These four views are: [[diya]] as a [[punishment]]; [[diya]] as a [[financial compensation]]; [[diya]] as a combination of [[punishment]] and [[financial compensation]]; and [[diya]] as [[compensation by mutual consent]].

If [[diya]] aims at [[punishment]], then it must conform to the basic characteristics of [[punishment]], such as its [[punitive function]], the requirement of a non-material element (intentional or negligent) and the proportionality of the crime and the punishment; and as specific punishments are determined for it in [[Islamic jurisprudence]], so its amount cannot be reduced or increased. If [[diya]] aims at compensating for the damage, then it must be capable of compensating all damages incurred to a victim; for example, it must pay the full costs of treatment and disability. In this case, the [[jurist]] can add the provisions to [[diya]] by relying on its nature. If [[diya]] aims at a combination of punishment and compensation, it is possible to secure damages beyond [[diya]] due to the presence of the compensation element; but if it aims at compensation by mutual consent, it will no longer be considered a fixed sharia decree but a solution to end hostility; thus, it can easily be changed according to the demands of time and place.

===Diya is a punishment===
{{main|Theory of diya as a punishment}}
Some Muslim [[jurists]] believe that [[diya]] is a [[punishment]] and it is included among the [[financial punishments]]. The [[Islamic Penal Code of Iran]] (approved in 2013) have also listed [[diya]] as one of the [[Islamic punishments]] and Article 1 states that “The [[Islamic Penal Code]] consists of offences and punishments of [[hudud]], [[qisas]], [[diyas]], [[ta’zirat]], the [[security and correctional measures]], requirements and barriers of [[criminal responsibility]] and the rules that apply to them.”  
The same law stipulates in Article 14, “The punishments prescribed in this law are divided into four categories: a) [[Hadd]]; b) [[Qisas]]; C) [[diya]]; d) [[Ta’zir]].”<ref group="note" name="note1">It should be noted that the Islamic Penal Code is contradictory in this regard; because while the above mentioned articles and some other ones clearly view the nature of diya as a punishment, Article 452 stipulates that “diya is the personal right of the victim or avenger of blood, with the rules and effects of civil liability or guarantee. The responsibility of the perpetrator cannot be eliminated except by payment of diya, reconciliation, acquittance or compensation (tahatur)”.</ref>  
Among the proponents of this theory, we can mention the author of the book 'Diyah or Financial Punishment'.<ref>Salehi, ''diya or financial punishment'', pp. 45-50.</ref> Among Arab writers, Muhammad Rushdie Muhammad Ismail supports this theory.<ref>Ahmad Idris, ''al-diya bayn al-‘Uqubah wa al-Ta’wiz'', quoted from Muhamad Muhy al-Din ‘Awaz, ''al-Fiqh al-Jenaie al-Islami'', vol.77.</ref> Moreover, Ahmad al-Husari calls diya as one of the Islamic punishments.<ref>Al-Husari, ''al-qisas, al-diyat, al-‘Usyan al-Musallah fi al-Fiqh al-Islami'', p.438.</ref>

To prove their view, this group uses various arguments saying, for example, in the case of deliberate murder, diya is considered as an alternative punishment or it may have a punitive function, which is a main characteristic of punishment; this is like diay for committing a crime against the deceased and intensified diya in Haram (sacred) months.

===Diya as a financial compensation===
{{main|Theory of Diya as a financial compensation}}
Modern scholars commonly believe that diya is financial compensation for physical damage and it looks like civil damages guarantee. Among those who have chosen this view, we can name Abu al-Qasim Gurji.<ref>Gurji, ''diyat'', p.51.</ref> Seyyed Hasan Mar'ashi also supports this view adding that even retaliation (qisas) in cases of intentional homicide is a punishment that requires the will of the avengers of blood to be implemented because it is like the theft of human rights and is different from adultery, which does not requires anyone's demand.<ref>Mar’ashi, ''new perspectives in law'', vol.2, p.45.</ref>

Awad Ahmed Idris must also be considered as one who believes in the compensatory nature of diya and the financial compensation provisions. He believes that bodily harm is not merely limited to diya; some part of it is related to the medical treatment costs, and part of it is related to the loss of income, as some other part is related to the loss of body organs or life. Therefore, he sees no problem with the Shari'a legalizing some of these damages as diya and some others are covered under a different name. In other words, the fact that diya does not cover all bodily harms and does not fully conform to damages to property does not mean that diya is not compensatory or alternative in nature <ref>Ahmad Idris, ''al-Diyah'', p. 348.</ref>. Seyyed Mansur Mirsaeedi is also inclined to hold this view.<ref>Mir Saeedi, ''The Legal Nature of Diyas'', p. 92.</ref>

Among the jurists discussing this issue, Yusuf Sanei believes in the compensatory nature of diya.<ref>Sane’ie, ''Muntakhab al-Ahkam'', p. 334.</ref> Hussein Ali Montazeri also believes in the compensatory nature of diya, though he considers that it serves multiple purposes <ref>Montazeri, ''Islamic punishments and human rights'', pp. 36-38.</ref>.

===The integrated view===
Considering the arguments provided by those who believe in compensatory nature of diya and those who know it as a punishment, another group of thinkers have come to the conclusion that none of the two sides' evidence is preferable, and therefore, the nature of diya should be considered to include a combination of punishment and financial compensation.

Naser Makarem Shirazi can be considered as a supporter of this view. He writes, “Diya is both a punishment and compensation for the financial losses caused by the loss of the victim. Therefore, diya is both a punishment to prevent people from committing murder so that they are careful in their actions and not to commit such heinous mistakes; it is also a compensation for financial loss, because the loss of the victim causes disability and disruption in the family's economic affairs.”<ref>Makarem Shirazi, ''Buhuth Faqihah Hamah'', p. 148.</ref>

Ahmad Fathi Behansi, a Sunni jurist, adheres to this view.<ref>Fathi Behansi, ''al-Diya fi al-Shari'a al-Islamiyyah'', p. 15.</ref>  Naser Katouzian can also be mentioned among those who are inclined to this view.<ref>Katouzian, ''Civil Responsibility'', p. 66.</ref>

===Diya is compensation by mutual consent===
{{main|Theory of diya as a tool for obtaining consent}}
Some jurists believe that diya is independent by nature and it is not recognized in contemporary legal structures. In response to the request for a judicial opinion about whether diya is a type of punishment or a type of obligation like other financial obligations, Muhamad Taqi Bahjat writes, “Diya is an independent category and it is more applicable in certain cases”.<ref>Bahjat, ''Esteftaat'', Vol. 4, p. 487.</ref> In this independent category, financial compensation is one of the important purposes, not the only purpose; what is more important, is “obtaining the consent” of the victim or avengers of blood. In other words, diya is a property that, in the first place, is legislated to obtain the consent of the avengers of blood and prevent conflicts, and in the second place, it aims at compensating the victim for the damage caused.

In Sunni circles, Ali Ahmad Rashed has a saying that may imply this same sense. He writes, “Diya is money paid to the victim or the avengers of blood to obtain their consent and to compensate for the loss of life or limb of the deceased.”<ref>Ahmad Idris, ''al-Diya Bayn al-‘Uquba Wa al-Tawiz fi al-Fiqh al-Islami al-Maqarin'', p. 23, quoted from “Al-Qanun al-Jina'ie al-Islami”, p. 39.</ref>As quoted by ‘Awad Ahmad Idris, Rezvan Shafei al-Muta'ali is also inclined to this view.<ref>Ahmad Idris, ''al-Diya Bayn al-‘Uquba Wa al-Tawiz fi al-Fiqh al-Islami al-Maqarin'', p. 38, quoted from “al-Jinayat al-Muttahidah fi al-Qanun wa al-Shari’ah, p. 198.</ref> Ahmad Fathi Behansi knows this saying as the first and foremost view among Egyptian jurists and writes, “The most common view is that diya only aims at putting out the flames of anger and hatred in the hearts of the victims and their relatives; hence, diya is set to obtain the consent of the victims to some extent.”<ref>Fathi Behansi, ''al-Diya fi al-Shari'at al-Islamiyyah'', p. 12.</ref>

To sum up, what distinguishes this view from other views, particularly from the third one, is that it relies on the element of obtaining the consent of the victim and avengers of blood, which could be interpreted as a form of reconciliation; because reconciliation is not a punishment and therefore does not conform to any of the views that rely on diya as punishment. On the other hand, reconciliation does not fully compensate the damage and, thus, justifies well the disparity between the compensation and the harm caused to the victim. This feature is particularly evident in cases of murder, where it is not easy to calculate the amount of damage caused by the murder, and therefore murder is nowadays considered a pure crime by the rational mind and the term compensation is not applied, except for incidental damages such as funeral and burial expenses or loss of income due to the loss of a person.

==Research sources==
Numerous articles, books and theses are written and published on what diya actually is. Ardeshir Rostami's book, The Legal Nature of diya in the Islamic Countries of Iran, Egypt and the United Arab Emirates and Sayed Musa MirMudarres’s article, The Concept and Nature of diya from the Perspective of Islamic Jurisprudence and Law are to name a few.




==Notes==
<references group="note" />

==Bibliography==
* Ahmad Idris, Awad, ''Al-Diya Bayn al-‘Uqubah Wa al-Tawiz fi al-Fiqh al-Islami al-Maqarin'', Beirut, Dar Maktaba Al-Hilal, 1986.
* Bahjat, Muhammad Taqi, ''Esteftaat'', Qom: Office of Hazrat Ayatollah Bahjat, 1428 AH. 
* Husari, Ahmad, ''al-Qisas, al-Diyat, al-‘Usyan al-Muslah fi Fiqh al-Islami'', Cairo: Al-Azhariya Al-Alkaliyat School, 1393 AH.
* Salehi, Fazel, ''Diyah or Financial Punishment'', Tehran, Islamic Propaganda Office Publishing Center, 1999.
* Sane’ie, Yusuf, ''Muntakhab al-Ahkam'', Qom: Maitham Tammar, 2002.
* Fathi Behansi, Ahmad, ''al-Diya fi al-Shari'a al-Islamiyya'', Cairo, Dar al-Shrooq, 1404 AH.
* Katouzian, Naser, ''Civil Responsibility'', Tehran, Dehkhoda Publications, 1983.
* Gurji, Abulqasem, ''Diyat'', Tehran, Publishing and Printing Institute, University of Tehran, Spring 2008.
* Mar’ashi, Sayyed Muhammad Hasan, ''New Perspectives in Law'', Tehran, Mizan Publishing House, 1427 AH.
* Makarem Shirazi, Naser, ''Hama Fiqh Researches'', Qom, Imam Ali Ibn Abi Talib School Publications, 1422 AH.
* Muntazeri, Husein Ali, ''Islamic punishments and human rights'', Qom, Arghavan Danesh, 1429 AH.
* Mirsaeedi, Sayyed Mansur, ''The Legal Nature of Diyas'', Tehran, Mizan Publishing House, Autumn 1994.
==Footnotes==
[[fa:ماهیت دیه]]