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, we can mention the author of the book 'Diyah or Financial Punishment'. Among Arab writers, Muhammad Rushdie Muhammad Ismail supports this theory. Moreover, Ahmad al-Husari calls diya as one of the Islamic punishments.

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

Diya as a financial compensation

Template:Main 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 Abu al-Qasim Gurji. Seyyed Hasan Mar'ashi also supports this view adding that even retaliation (qisas) 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.

Awad Ahmed Idris must also be considered as one who believes in the compensatory nature of diya and the financial compensation provisions. He believes that bodily harm is not merely limited to diya; some part of it is related to the medical treatment costs, and part of it is related to the loss of income, as some other part is related to the loss of body organs or life. Therefore, he sees no problem with the Shari'a legalizing some of these damages as diya and some others are covered under a different name. In other words, the fact that diya does not cover all bodily harms and does not fully conform to damages to property does not mean that diya is not compensatory or alternative in nature . Seyyed Mansur Mirsaeedi is also inclined to hold this view.

Among the jurists discussing this issue, Yusuf Sanei believes in the compensatory nature of diya. Hussein Ali Montazeri also believes in the compensatory nature of diya, though he considers that it serves multiple purposes .

The integrated view

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.

Naser Makarem Shirazi can be considered as a supporter of this view. He writes, “Diya is both a punishment and compensation for the financial losses caused by the loss of the victim. Therefore, diya is both a punishment to prevent people from committing murder so that they are careful in their actions and not to commit such heinous mistakes; it is also a compensation for financial loss, because the loss of the victim causes disability and disruption in the family's economic affairs.”

Ahmad Fathi Behansi, a Sunni jurist, adheres to this view. Naser Katouzian can also be mentioned among those who are inclined to this view.

Diya is compensation by mutual consent

Template:Main 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 writes, “Diya is an independent category and it is more applicable in certain cases”. 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 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.”As quoted by ‘Awad Ahmad Idris, Rezvan Shafei al-Muta'ali is also inclined to this view. 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.”

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.

Research sources

Numerous articles, books and theses are written and published on what diya actually is. Ardeshir Rostami's book, The Legal Nature of diya in the Islamic Countries of Iran, Egypt and the United Arab Emirates and Sayed Musa MirMudarres’s article, The Concept and Nature of diya from the Perspective of Islamic Jurisprudence and Law are to name a few.

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.