Theory of diya as a means of collecting consent

Author: Ali Sharifi

Diya as a compensation by mutual consent (in persian: نظریه ابزارانگاری دیه برای رضایت)(as opposed to diya as a punishment, compensation for damages, and the integrated view) is one of the four explanations provided for diya in Islamic Jurisprudence, according to which diya is a means of collecting the consent of the victim or avengers of blood.

In order to prove that diya is an act of consent, Surah An-Nisa, verse 92 is relied where a distinction is made between the diya of the enemies of Islam and the diya of the 'people of the covenant' and it argues that if the victim is a believer from the enemy tribe, diya is not required, but if the victim belongs to the people of the covenant, diya will be obligatory. Therefore, it is argued that the diya is essentially intended to resolve disputes and enmities, and if the blood spilled relates to a tribe that is in a particular dispute or enmity with Muslims, then legislation of the diya will be of no use. In this context, in addition to the aforementioned verse, the effect of the context of the Arabian Peninsula on the rule of diya is also noted.

Some effects are assumed for this theory including that Islamic rulers may define all damages to the victim as diya, or based on this explanation, inequalities in diya between men and women, Muslims and non-Muslims, and slaves and free men can be justified.

Significance and position

Considering diya as a means of collecting consent is one of the points that Islamic jurists have mentioned about the nature of diya. The discussion about diya is more of a legal nature than jurisprudential one, but with the transformation of jurisprudence into law, questions about diya are raised, which are either impossible or difficult to answer except by knowing the nature and purpose of diya. Such questions are related to compensation beyond the amount of diya, compensation for disability, inequalities in diya between men and women, inequalities in diya between Muslims and non-Muslims, the alleged conflicts between diya and human rights standards and the like, which are considered among the problems facing Jurisprudence in the field of diya today, and by determining the nature of diya, Muslim jurists can revise these rulings. Apart from the theory of compensation by mutual consent, efforts to date to explain the nature of diya have resulted in three views: diya as a punishment, diya as a civil damage and the integrated view.

Description of the theory

The theory of compensation by mutual consent argues that diya has a unique nature and is in fact a financial compensation paid to collect the consent of the victim or avengers of blood in order to avoid conflict arising from the crime. According to some interpretations, diya is neither a punishment nor a civil compensation or a combination of the two, but has an independent and unique nature. In response to a question about the nature of diya, Muhammad Taqi Bahjat writes that “It is an independent case, more similar in some cases than others”. According to this view, although diya is entitled to compensation, but this is a matter of secondary importance for the legislator. What is important in the first instance is to 'obtain the consent' of the victim or avengers of blood and to avoid conflicts arising from physical injury. In Sunni circles, Ali Ahmed Rashid and Rezwan Shafe'ie al-Muta’afi lean towards this view, and Ahmad Fathi Behansi considers it a well-known view among Egyptian jurists, saying that “the diya merely aims at putting out the flames of anger and hatred in the heart of the victim and his relatives. Therefore, diya is established to bring some degree of satisfaction to the victim.” What distinguishes this view from the others, especially the second one, is that it is based on the element of obtaining the consent of the victim and avengers of blood. This implies a form of reconciliation, and it is clear that reconciliation is not a punishment; thus, it is not consistent with any view that relies on diya as a punishment. On the other hand, reconciliation does not always entail full compensation, and this theory can therefore justify a discrepancy between the diya and the harm incurred to the victim. This feature is particularly evident in the case of murder, where the amount of damage caused by the murder cannot be easily estimated, which is why in some countries today murder is considered a simple crime and, except for incidental damages such as funeral expenses or loss of income resulting from the loss of a person, murder is not considered a loss and thus no financial compensation is considered for it.

Effects of the view

Understanding the nature of diya is said to be akin to discovering the causes of a ruling, on the basis of which the ruling can be expanded or narrowed. According to this explanation, diya is not a permanent ruling, but a situational one and it aimed to resolve conflicts in the society of the day, especially in the Arabian Peninsula. Therefore, if the situation changes, it can be replaced by a new mechanism. This mechanism could replace the 'damage estimation' system.

The effects of the theory of compensation by mutual consent in theory and practice

Some effects of this view can be listed as follows:

• The Islamic ruler can, at his discretion, set all the damages incurred to the victim as diya. This conclusion cannot be achieved by following other views that see the nature of diya as an act of worship, or it will be difficult.
• Inequalities in diya can be justified in a variety of situations, including where no apparent harm is incurred.
• Muslim rulers may resort to other ways to eliminate the source of the conflict and demand diya only to compensate damages.
• Inequality in diya between men and women, Muslims and non-Muslims, slaves and free people can be well understood and analyzed.
• The problem of the six types of diya can be completely resolved because, in this case, none of the six types have a distinguishing feature.
• The way to estimate Arsh (compensation for defects) will no longer be problematic for judges and doctors; rather, losses can easily be replaced by Arsh.

Argumentation based on verse 92 of Surah an-Nisa

Verse 92 of Surah an-Nisa is the only verse in the Quran that talks about diya ruling and all hadiths are derived from this verse. Thus, it can be the best way to discover the nature of diya. After expressing the sanctity of murder, distinguishing between intentional and negligent homicide, and specifying the obligations of atonement and diya, the final part of the verse distinguishes between the 'people of the enemy' and the 'people of the covenant' in terms of the obligation to pay diya. Accordingly, if the murdered believer is from a tribe that is considered hostile to you, no diya is required; but if he is from a tribe that has a treaty with you, it will be obligatory to pay diya. However, some jurists, such as Ibn Idris, deny the apparent meaning of the verse and consider it obligatory to pay diya. While some jurists have excluded only a specific case stating that if a believer was killed in the land of war (dar al-harb) on the presumption of disbelief, the general ruling that makes diya obligatory in the case of the wrongful killing of a believer will not be applied. However, others, such as Saheb al-Jawahir and Saheb al-Madarik, find even this exception unacceptable.

What does ‘people’ mean?

Commentators and jurists agree that the ‘people’ in this verse are non-Muslims, but they disagree on what Muslims mean. Some consider it to be a Muslim who fights against the Muslims together with polytheists and is killed as a result; while others consider it to be a person who belongs to an infidel tribe and he has exceptionally become Muslim. The author of Masalik al-Afham attributes this statement to Shaykh Tusi. The first possibility is not in accordance with the cause of revelation and apparent meaning of the verse, and in the causes of revelation reported about this verse, it is not assumed that a person should join polytheists for battle; because this verse either refers to Ayyash ibn Abi Rabi’a Makhzumi who killed Harith bin Yazid ibn Abi Nabshiya Ameri assuming that he was an infidel, or it is revealed about Abu al-Darda who attacked a Shepherd and killed him disregarding that he was repeating 'There is no god but Allah'. On the other hand, this does not accord with the apparent meaning of the verse either, because the verse speaks of the people of covenant who are not actually at war with Muslims. Moreover, no atonement is required in this case; however, the second possibility is consistent with the apparent meaning of the verse.

Why a believer from an enemy tribe is not paid diya?

An important question when referring to the verse of Surah an-Nisa is why believers who are from an enemy tribe are not paid diya, while the general rule requires payment of diya if a believer is killed unjustly, and why many jurists have exempted this case when applying the hadith conditions to the verse in the Quran? This group of jurists disagrees as to why the diya is not obligatory. Some of them argue that since such man's tribe is infidel and infidels do not inherit from Muslims and the diya is inherited, then it is not payable. In criticism of this analysis, it is stated that if it was so, a certain condition must have been stipulated in the verse: “unless he has a Muslim heir”. Therefore, the reason for not paying the diya is that the enmity between Muslims and that tribe makes it impossible to search for heirs so that they can be given the diya. Some others have argued that a Muslim who lives in the land of war (dar al-harb) among the enemies of Islam is, in fact, wasting his blood and therefore no diya is payable.

Explanations based on conflict resolution

Although no reason is given for any of the justifications given under the verse, these comments show that enmity affects the rejection of diya and that is why the Quran has stated such a provision. Thus the verse can be explained as basically saying that diya is meant to resolve conflict and remove enmity, and if the blood spilled is related to a people whose enmity with Muslims is clear, then establishment of diya will be ineffective. Husein Ali Montazeri writes: “Although diya is set to compensate for damage ... a believer who is killed unintentionally and his relatives are not enemies of Muslims, diya will be payable to him; but if a believer is killed in the same way and his relatives are enemies of the Muslims, no diya will be payable though both of them are believers.” Montazeri not only considers enmity as the sole reason for the lapse of diya, but also interprets the word ‘people’ as the ‘relatives’ of the victim. This interpretation is in line with the apparent meaning of the verse of the Quran and prevents it from being merely limited to non-Muslims from dar al-harb; though some commentators believe that the term من قوم refers to the residence of the victim, not the family or tribe from which he came.

Diya as an indefinite word

Some authors have referred to indefinite form of “diya” in this verse stating that diya aims at compensation by mutual consent; because God states that diya, whether small or large in value, must be paid for the victim's family, as it is important to collect their consent. The above interpretation may not be supported much among the commentators, but it is consistent with the apparent meaning of the verse, and if this interpretation is correct, then it will prove the view that diya essentially aims at collecting the consent of the victim and resolving the conflict, though the payment of the diya will obviously compensate for part of the damage incurred to the victim.

The effect of the context of the Arabian Peninsula on diya ruling

Historical evidence suggests that diya is not a constitutional rule in Islam. Moreover, there is evidence that proves diya merely aimed at collecting the consent and resolving conflict in pre-Islamic period; because Arab life then was largely based on ‘fierce arrogance’ and ‘prejudice of the time of ignorance’, so that even the slightest attack on a member of the tribe was seen as an attack on the entire tribe, fueling the fires of anger and revenge. Under such condition, the main function of the diya was to ‘collect the consent’ of the tribe of the victim and quell the fires of revenge. Historians therefore emphasize that the ignorant Arabs knew about revenge before they knew about the diya payment system and after harmful consequences resulting from the process of revenge they concluded that paying some money would collect the consent of the tribe of the victim. This is more or less reported about other nations too. Another evidence is a story reported by a Shafe'ie according to which someone killed a noble man and a relative of the murderer went to the father of the deceased and said, “What do you want from us that may satisfy you?” The victim's father said, “One of three things.” They asked, “What are those three things?” He said, “Bring my child back to life, or fill my house with stars, or hand over your people to me to kill them all, in which case I don't know whether I will retaliate or not.” Reliance on ‘consent’ can be seen as an indication that diya aimed at compensation by mutual consent in that society.

Establishment of diya by the Prophet Muhammad (PBUH)

The fact that Prophet Muhammad approved and signed the diya decree does not mean that this function was suddenly abandoned, and many of its features were retained. That the Prophet (PBUH) set the diya value as 100 camels according to the practice of Abd al-Muttalib, shows that he did not only intend to compensate for damage because according to the practice of the ignorant Arabs, the loss of a human being cost only 10 camels for a tribe, and if the victim was one of the chiefs or sheikhs of the tribe, the damage cost 1000 camels. The Prophet considered a certain sum of 100 camels, not to compensate for the loss, but to end the conflict and obtain the consent of the other party.

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