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Theory of Diya as a Financial Compensation

From Encyclopedia of Contemporary Jurisprudence
Author: Ali Sharifi

Diya as a financial compensation (in persian: نظریه جبران خسارت بودن دیه) is one of the four explanations for Diya in Islamic Jurisprudence. Describing Diya as compensation for damage is common among modern Islamic jurists and scholars such as Yusuf Sanei 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 (compensation for defects) in hadiths and Arsh refers to compensation for damages in cases where the amount has not been determined, therefore, Diya will also be for compensation.

However, criticisms have also been made on the reasons mentioned above; such as the claim that it is wrong to determine value for human life and body organs because pricing is supposed to be reserved for properties, not human beings. It is also said about the cause of Arsh that sometimes Diya or Arsh are specified in a situation where there is no fault or defect and therefore no damage is caused to consider Diyah as the compensation for damage.

The significance and position

Attitude of Diya as a compensation tool for damage is one of the answers given by Muslim jurists in response to the question about the nature of Diya. The discussions about Diya’s identity is more of a legal nature than jurisprudential; but with the transformation of jurisprudence into law, some questions and problems about Diya are raised, which are either impossible or difficult to answer except by knowing the nature and purpose of Diya. Among the problems are 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 claim of conflict of Diya with human rights standards, and the like. Today, by determining the nature of Diya, Muslim jurists can revise all these kinds of Jurisprudential problems in the field of Diya. On the contrary, regarding Diya as punishment, the eclectic attitude and knowing it as a substitute for mutual consent are considered as competing theories.

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,[1] Sayed Muhammad Hasan Mar’ashi,[2] Sayed Mansur Mirsaeidi[3] and Ewaz Ahmad Idris,[4] a Sunni scholar. Among the contemporary religious authorities (Marja’s), Yusuf Sanei, explicitly[5] and Hussein Ali Montazeri, cautiously[6] adhere to this view.

Proofs for damage view

It is important to note that some of the evidence presented to defend this theory does not show direct harm, but only lack of punishment and this type of evidence will not be presented here.

The compensatory function of Diya

In cases that it is obligatory to pay Diya, whether it is related to murder (unintentional homicide, negligent homicide, intentional homicide in which there is no retaliation), or injuries, it is clear that physical harm is incurred to the victim. Since Islamic law does not provide any other way to pay for this damage, it is clear that Diya has been legislated to compensate for the damage. The reason is that assuming that nothing is determined in law to compensate for these violations is neither consistent with the fair nature of the Sharia law nor with such rules as the “rule of Tell” (the government’s responsibility to citizens).

The common ground of Diya and Arsh

Diya is presented contrary to Arsh (compensation for defects) in traditions[7] 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.”[8] 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.”[9] The way Arsh is determined in the words of Muslim jurists supports this meaning; because slave-imagination, which is commonly used by earlier jurists[10] corresponds to damage assessment. In addition, the method used by some contemporaries of Sayyed Abul Qasim Khoie[11], 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,[12] 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.

Diya increases with increased damage

Although Diya of body organs is generally subject to the rule of «کل ما فی الانسان منه اثنان ففیه الدیه...», (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[13][14] 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

According to Hashemi Shahrudi, the reason is flawed in two ways:[15]

  1. This evidence is based on pricing human life and body parts, while human life cannot be priced because pricing is related to property, while human life and body parts are not considered as properties.
  2. Diyah or Arsh are sometimes legislated for situations where no defect is involved; in other words, no damage is incurred to the person to claim that Diya is legislated to pay for it; for example, in the case where a broken bone or spine heal flawlessly[16], the amount to be paid as Diya is 100 dinars.[17] It turns out that Diya is not wholly legislated as compensation for damage as other reasons are also involved.[18]

Although the second and third reasons are correct in principle, they cannot fully prove the theory because they only show as an affirmative particular proposition that shows that Diya compensates for damage in some cases, but it cannot be inferred from these arguments that it is applied only to compensate for the damage.[19]

References

  • 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.
  • Isfahani, Muhammad Hussein, Hashiyat Kitab al-Makasib, Qom, Anwar al-Huda, 1418 AH, 1st.
  • Hurr Ameli, Muhammad ibn Hasan, Wasail al-Shi'a ila Tahsil Masail al-Sharia, Qom, Al-Bayt (AS) Institute, 1409 AH, 1st.
  • Khumeini (Imam), Sayyed Ruhollah, Tahrir al-Wasila, Qom, Dar al-Ilm Press Institute, Bita, 1st.
  • Sheikh Ansari, Morteza, Kitab al-Makasib, Qom, World Congress of Commemoration of Sheikh Azam Ansari, 1415 AH, 1st.
  • Sanei, Yusuf, Muntakhab al-Ahkam, Qom, Meitham Tammar, 2003, 5th.
  • Fazil Lankarani, Muhammad, Tafsil al-Shari’a fi Sharh Tahrir al-Wasila: Al-Diyat, Qom, Jurisprudential Center of Imams Athar (AS), 1418 AH, 1st.
  • Gurji, Abu al-Qasim, Diyat, Tehran, Publishing and Printing Institute of Tehran University, Spring 2001, 1st.
  • Mar’ashi, Sayyed Muhammad Hasan, Didgahha-ye no dar Huquq, Tehran, Mizan Publishing House, 1427 AH, 2nd.
  • Montazeri, Hussain Ali, Mujazatha-ye Islami wa Huquq bashar, Qom, Arghvan Danish, 1429 AH, 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.

footnotes

  1. ↑ Gurji, Diyat, p.51.
  2. ↑ Mar’ashi, Didgahhay-e no dar Huquq, vol.2, p.45.
  3. ↑ Mir Saiedi, Mahiyat huquqi-ye Diyat, p.92.
  4. ↑ Ahmad Idris, al-Diya, p.348.
  5. ↑ Sanei, Muntakhab al-Ahkam, p.334.
  6. ↑ Muntazeri, Mujazatha-ye Islami wa Huquq bashar, p.36-38.
  7. ↑ 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.
  8. ↑ Sheikh Ansari, Kitab al-Makasib, vol.5, p.391.
  9. ↑ Isfahani, Hashiyat al-Makasib, vol.5, p.71.
  10. ↑ Ardebili, Majma’ al-Faidah wa al-Burhan, vol.14, p.137.
  11. ↑ Khoie, Mabani Takmilat al-Minhaj, vol.42, p.330.
  12. ↑ Ismael ibn Ibad, al-Muhit fi al-Lughat, vol.2, p.261, maddah “Arsh”.
  13. ↑ Fazil Lankarani, Tafsil al-Shari’at, Kital al-Diyat, p.140.
  14. ↑ Hurr Ameli, Wasail al-Shi’a, Abwab Diyat al-A’za’, al-bab5, H2, vol.29, p.295.
  15. ↑ Hashemi Shahrudi, Qira’at Faqiha Mu’asirah, vol.2, p.324.
  16. ↑ Hashemi Shahrudi, Qira’at Faqiha Mu’asirah, vol.2, p.333.
  17. ↑ Khumeini, Tahrir al-Wasilah, vol.2, p.581.
  18. ↑ Hashemi Shahrudi, Qira’at Faqiha Mu’asirah, vol.2, p.340.
  19. ↑ Hashemi Shahrudi, Qira’at Faqiha Mu’asirah, vol.2, p.333.
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