Theory of Diya as a Financial Compensation: Difference between revisions
Created page with " {{Author |author = Ali Sharifi |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} '''Diya as a financial compensation''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%86%D8%B8%D8%B1%DB%8C%D9%87_%D8%AC%D8%A8%D8%B1%D8%A7%D9%86_%D8%AE%D8%B3%D8%A7%D8%B1%D8%AA_%D8%A8%D9%88%D8%AF%D9%86_%D8%AF%DB%8C%D9%87 نظریه جبران خسارت بودن دیه]) is one of the four explanations for Diya in Islamic Jurisprudenc..." |
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'''Diya as a financial compensation''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%86%D8%B8%D8%B1%DB%8C%D9%87_%D8%AC%D8%A8%D8%B1%D8%A7%D9%86_%D8%AE%D8%B3%D8%A7%D8%B1%D8%AA_%D8%A8%D9%88%D8%AF%D9%86_%D8%AF%DB%8C%D9%87 نظریه جبران خسارت بودن دیه]) is one of the four explanations for [[Diya (Islamic law)|Diya]] in [[Islamic Jurisprudence]]. Describing Diya as compensation for damage is common among modern Islamic jurists and scholars such as [[ | '''Diya as a financial compensation''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%86%D8%B8%D8%B1%DB%8C%D9%87_%D8%AC%D8%A8%D8%B1%D8%A7%D9%86_%D8%AE%D8%B3%D8%A7%D8%B1%D8%AA_%D8%A8%D9%88%D8%AF%D9%86_%D8%AF%DB%8C%D9%87 نظریه جبران خسارت بودن دیه]) is one of the four explanations for [[Diya (Islamic law)|Diya]] in [[Islamic Jurisprudence]]. Describing Diya as compensation for damage is common among modern Islamic jurists and scholars such as [[Yousef Saanei]] who stated it explicitly, [[Hussein Ali Montazeri]] and [[Abu al-Qasim Gurji]]. | ||
To prove Diya as compensation for damage some reasons have been provided including that Diya is applied to compensate because in the case of unintentional murder, negligent murder, or even injuries, for example, some physical damage is incurred to a victim and the amount paid in these cases is to compensate for the damage. Another reason is that since Diya is used against [[Arsh (Islamic law)|Arsh]] (compensation for defects) in [[hadith]]s and Arsh refers to compensation for damages in cases where the amount has not been determined, therefore, Diya will also be for compensation. | To prove Diya as compensation for damage some reasons have been provided including that Diya is applied to compensate because in the case of unintentional murder, negligent murder, or even injuries, for example, some physical damage is incurred to a victim and the amount paid in these cases is to compensate for the damage. Another reason is that since Diya is used against [[Arsh (Islamic law)|Arsh]] (compensation for defects) in [[hadith]]s and Arsh refers to compensation for damages in cases where the amount has not been determined, therefore, Diya will also be for compensation. | ||
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==Description of the theory== | ==Description of the theory== | ||
Modern scholars commonly believe that Diya is a financial compensation for physical damage. Among those who have chosen this view, we can name [[Abu al-Qasim Gurji]],<ref>Gurji, Diyat, p.51.</ref> Sayed Muhammad Hasan Mar’ashi,<ref>Mar’ashi, Didgahhay-e no dar Huquq, vol.2, p.45.</ref> Sayed Mansur Mirsaeidi<ref>Mir Saiedi, Mahiyat huquqi-ye Diyat, p.92.</ref> and Ewaz Ahmad Idris,<ref>Ahmad Idris, al-Diya, p.348.</ref> a Sunni scholar. Among the contemporary religious authorities (Marja’s), [[ | Modern scholars commonly believe that Diya is a financial compensation for physical damage. Among those who have chosen this view, we can name [[Abu al-Qasim Gurji]],<ref>Gurji, Diyat, p.51.</ref> Sayed Muhammad Hasan Mar’ashi,<ref>Mar’ashi, Didgahhay-e no dar Huquq, vol.2, p.45.</ref> Sayed Mansur Mirsaeidi<ref>Mir Saiedi, Mahiyat huquqi-ye Diyat, p.92.</ref> and Ewaz Ahmad Idris,<ref>Ahmad Idris, al-Diya, p.348.</ref> a Sunni scholar. Among the contemporary religious authorities (Marja’s), [[Yousef Saanei]], explicitly<ref>Sanei, Muntakhab al-Ahkam, p.334.</ref> and [[Hussein Ali Montazeri]], cautiously<ref>Muntazeri, Mujazatha-ye Islami wa Huquq bashar, p.36-38.</ref> adhere to this view. | ||
==Proofs for damage view== | ==Proofs for damage view== | ||
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===The common ground of Diya and Arsh=== | ===The common ground of Diya and Arsh=== | ||
Diya is presented contrary to [[Arsh (Islamic law)|Arsh]] (compensation for defects) in traditions<ref>See Hurr Ameli, Wasail al-Shia, vol.29, p.177, bab 14 of Abwab Qisas al-Nafs; p.327, bab 24 of Abwab Diyat al-A’za’, H3.</ref> and since Arsh is reserved for compensating for cases that Diya is not determined, Diya shall also, analogically, function as compensation for damage. | Diya is presented contrary to [[Arsh (Islamic law)|Arsh]] (compensation for defects) in traditions<ref>See Hurr Ameli, Wasail al-Shia, vol.29, p.177, bab 14 of Abwab Qisas al-Nafs; p.327, bab 24 of Abwab Diyat al-A’za’, H3.</ref> and since Arsh is reserved for compensating for cases that Diya is not determined, Diya shall also, analogically, function as compensation for damage. | ||
To prove the nature of Arsh, we can argue using the definition of Arsh provided by [[Sheikh Ansari]] and annotators of Makasib, who define Arsh as “Property that is taken in exchange for the defect in property or body.”<ref>Sheikh Ansari, Kitab al-Makasib, vol.5, p.391.</ref> The interpretation of Arsh does not include any punitive cause. | To prove the nature of Arsh, we can argue using the definition of Arsh provided by [[Sheikh Ansari]] and annotators of Makasib, who define Arsh as “Property that is taken in exchange for the defect in property or body.”<ref>Sheikh Ansari, Kitab al-Makasib, vol.5, p.391.</ref> The interpretation of Arsh does not include any punitive cause. | ||
Sheikh [[Muhammad Hussein Isfahani]] views this definition not as a literal or terminological meaning, but as “taken from” the collection of interpretations of jurists; thus, this definition is a reflection of the jurists’ understanding of Arsh. He also provides a similar definition for Arsh and writes, “Arsh, in Sharia law and common language, is the money that compensates for defects.”<ref>Isfahani, Hashiyat al-Makasib, vol.5, p.71.</ref> | Sheikh [[Muhammad Hussein Isfahani]] views this definition not as a literal or terminological meaning, but as “taken from” the collection of interpretations of jurists; thus, this definition is a reflection of the jurists’ understanding of Arsh. He also provides a similar definition for Arsh and writes, “Arsh, in Sharia law and common language, is the money that compensates for defects.”<ref>Isfahani, Hashiyat al-Makasib, vol.5, p.71.</ref> | ||
The way Arsh is determined in the words of Muslim jurists supports this meaning; because slave-imagination, which is commonly used by earlier jurists<ref>Ardebili, Majma’ al-Faidah wa al-Burhan, vol.14, p.137.</ref> corresponds to damage assessment. In addition, the method used by some contemporaries of [[Sayyed Abul Qasim Khoie]]<ref>Khoie, Mabani Takmilat al-Minhaj, vol.42, p.330.</ref>, in which it is decided by the ruler after consulting with two trusted experts, is also consistent with the damage. Thus, what matters in both methods is to calculate the “amount of defect”. | The way Arsh is determined in the words of Muslim jurists supports this meaning; because slave-imagination, which is commonly used by earlier jurists<ref>Ardebili, Majma’ al-Faidah wa al-Burhan, vol.14, p.137.</ref> corresponds to damage assessment. In addition, the method used by some contemporaries of [[Sayyed Abul Qasim Khoie]]<ref>Khoie, Mabani Takmilat al-Minhaj, vol.42, p.330.</ref>, in which it is decided by the ruler after consulting with two trusted experts, is also consistent with the damage. Thus, what matters in both methods is to calculate the “amount of defect”. | ||
To show the similarity of Diyah and Arsh, it is stated that one of the meanings of Arsh is considered to be Diya,<ref>Ismael ibn Ibad, al-Muhit fi al-Lughat, vol.2, p.261, maddah “Arsh”.</ref> and sometimes the word Diya is used instead of the word Arsh in Arabic. In other words, the common understanding of these two definitions is so close that sometimes one is used for the other. That shows that the common understanding of the nature of these two concepts is the same. At least, the intent of the law regarding these two concepts is assumed to be the same. | To show the similarity of Diyah and Arsh, it is stated that one of the meanings of Arsh is considered to be Diya,<ref>Ismael ibn Ibad, al-Muhit fi al-Lughat, vol.2, p.261, maddah “Arsh”.</ref> and sometimes the word Diya is used instead of the word Arsh in Arabic. In other words, the common understanding of these two definitions is so close that sometimes one is used for the other. That shows that the common understanding of the nature of these two concepts is the same. At least, the intent of the law regarding these two concepts is assumed to be the same. | ||
Moreover, in the words of Sunni jurists, the Diya of body organs, whether determined or not, is called Arsh, and this also reflects a similar understanding of these two concepts by the jurists of Ahl al-Sunnah. It seems like this argument is perfect; however, it proves as an affirmative particular proposition that Diya is a compensation for damage. In other words, the content of this proof and the previous one show that compensation for damage is “more or less” included in Diya. | Moreover, in the words of Sunni jurists, the Diya of body organs, whether determined or not, is called Arsh, and this also reflects a similar understanding of these two concepts by the jurists of Ahl al-Sunnah. It seems like this argument is perfect; however, it proves as an affirmative particular proposition that Diya is a compensation for damage. In other words, the content of this proof and the previous one show that compensation for damage is “more or less” included in Diya. | ||
===Diya increases with increased damage=== | ===Diya increases with increased damage=== | ||
Although Diya of body organs is generally subject to the rule of | Although Diya of body organs is generally subject to the rule of "for each body member that is two in number, there is Diya", in some cases, the amount of Diya increases due to the importance of the member and the greater damage caused to the victim; for example, it has been said that the lower lip diya is more than the upper lip diya<ref>Fazil Lankarani, Tafsil al-Shari’at, Kital al-Diyat, p.140.</ref><ref>Hurr Ameli, Wasail al-Shi’a, Abwab Diyat al-A’za’, al-bab5, H2, vol.29, p.295.</ref> because of the greater efficiency of the lower lip. This proves that Sharia law seeks to compensate for damage (defect); that is why the amount of diya increases as the damage increases. The Diya of body members is legislated by the Sharia law to compensate for damages, and apparently, Arabs were not familiar with that before the advent of Islam. | ||
==Criticism and evaluation of evidence for the compensatory nature of Diya== | ==Criticism and evaluation of evidence for the compensatory nature of Diya== | ||
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==References== | ==References== | ||
{{References}} | |||
* Ahmad Idris, Ewaz, al-Diya, translated by Dr Alireza Feyz, Tehran, Ministry of Culture and Islamic Guidance publication organization, no.1372, 1st. | * Ahmad Idris, Ewaz, al-Diya, translated by Dr Alireza Feyz, Tehran, Ministry of Culture and Islamic Guidance publication organization, no.1372, 1st. | ||
* Ardebili, Ahmad, Majma’ al-Faidah wa al-Burhan fi sharh Irshad al-Azhan, Qom, Islamic publishing office affiliated with The Society of Seminary Teachers of Qom, 1403 AH, 1st. | * Ardebili, Ahmad, Majma’ al-Faidah wa al-Burhan fi sharh Irshad al-Azhan, Qom, Islamic publishing office affiliated with The Society of Seminary Teachers of Qom, 1403 AH, 1st. | ||
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* Mirsaeedi, Sayyed Mansur, Mahiyat Huquqi-ye Diyat, Tehran, Mizan Publishing House, Fall 1994, 1st. | * Mirsaeedi, Sayyed Mansur, Mahiyat Huquqi-ye Diyat, Tehran, Mizan Publishing House, Fall 1994, 1st. | ||
* Hashemi Shahrudi, Sayyed Mahmud, Qira’at Faqiha Mu’asirah (the article of Miqdar ma yazminuh al-jani min al-Khasa’ir), Qom, Institute of Encyclopedia of Islamic Jurisprudence on the religion of Ahl al-Bayt(AS), 1423 AH. | * Hashemi Shahrudi, Sayyed Mahmud, Qira’at Faqiha Mu’asirah (the article of Miqdar ma yazminuh al-jani min al-Khasa’ir), Qom, Institute of Encyclopedia of Islamic Jurisprudence on the religion of Ahl al-Bayt(AS), 1423 AH. | ||
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==footnotes== | ==footnotes== | ||
{{footnotes}} | |||
[[fa:نظریه_جبران_خسارت_بودن_دیه]] | [[fa:نظریه_جبران_خسارت_بودن_دیه]] | ||
[[Category:Theories on the Nature of Diyyah]] | |||
[[Category:Contemporary Jurisprudence Articles]] | |||