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.

 

 

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 [[diya for committing a crime against the deceased]] and [[intensified diya in Haram (sacred) months]].

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 [[Abul Qasim Gurji|Abu al-Qasim Gurji]]<ref name="ref5">Gurji, diyat, p.51.</ref>. [[Seyyed Hasan Mar'ashi|Seyyed Hasan Mar'ashi]] also supports this view adding that even [[qisas|retaliation]] 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 name="ref6">Mar’ashi, new perspectives in law, vol.2, p.45.</ref>.

 

Among the [[jurists]] discussing this issue, [[Yusuf Sanaei|Yusuf Sanei]] believes in the [[compensatory nature of diya]]<ref name="ref9">Sane’ie, Muntakhab al-Ahkam, p. 334.</ref>. [[Hossein-Ali Montazeri|Hussein Ali Montazeri]] also believes in the [[compensatory nature of diya]], though he considers that it serves multiple purposes<ref name="ref10">Montazeri, Islamic punishments and human rights, pp. 36-38.</ref>.

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]].

 

[[Ahmad Fathi Behansi|Ahmad Fathi Behansi]], a [[Sunni jurist]], adheres to this view<ref name="ref12">Fathi Behansi, al-Diya fi al-Shari'a al-Islamiyyah, p. 15.</ref>. [[Naser Katouzian|Naser Katouzian]] can also be mentioned among those who are inclined to this view<ref name="ref13">Katouzian, Civil Responsibility, p. 66.</ref>.

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|Muhamad Taqi Bahjat]] writes, “[[Diya]] is an [[independent category]] and it is more applicable in certain cases”<ref name="ref14">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|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 name="ref15">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|‘Awad Ahmad Idris]], [[Rezvan Shafei al-Muta'ali|Rezvan Shafei al-Muta'ali]] is also inclined to this view<ref name="ref16">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|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 name="ref17">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]].

==Bibliography==