Nature of Diya

Author: Ali Sharifi

• 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 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

Template:Main 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.” Among the proponents of this theory: the author of Diyah or Financial Punishment; Muhammad Rushdie Muhammad Ismail; Ahmad al-Husari.

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