Nature of Diya: Difference between revisions

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|Yusuf Sanaei]], [[Hossein-Ali Montazeri|Hussein Ali Montazeri]] and [[Abul Qasim Gurji|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|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|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.

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]].

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 above-mentioned provisions to [[diya]] by relying on the nature of [[diya]]. 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.

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>.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

==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.