Theory of diya as a punishment

Author: Ali Sharifi

Diya as a punishment (in persian: نظریه مجازات‌بودن دیه) is one of the four explanations provided for diya in Islamic Jurisprudence. According to the rules of Islamic jurisprudence, if diya is a type of punishment, it cannot be reduced or increased because it is among the punishments for which specific amount is determined.

Several reasons are provided to prove that diya is a punishment; such as the fact that diya is an alternative punishment in certain cases; so, it is punishment itself. Or diya has a punitive or deterrent function, which proves that it is punishment, or even in the case of a crime against the deceased diya is determined, which can only be considered as punishment; because it makes no sense to talk of harm to a deceased. Intensified diya in Haram (sacred) months is yet another proof for punitive nature of diya. There are several criticisms on the arguments provided for the punitive nature of diya. For example, it is claimed that these arguments are incomplete and the fact that diya is sometimes made obligatory for the wise elders; however, if diya has a punitive nature, punishment of the innocent may be an evil action.

Significance and position

Considering diya as a form of punishment is one of the answers provided by Islamic jurists to the question about the nature of Diya. The discussion about Diya is more of a legal nature than jurisprudential one. However with the transformation of jurisprudence into law, Some questions about Diya are raised that are either impossible or difficult to answer except by knowing the nature and purpose of Diya. Some examples are 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. Regarding diya as a civil damage, the integrated view and knowing it as compensation by mutual consent are considered as competing theories.

Description of the theory

Some jurists believe that diya has a punitive nature and it is included among the financial punishments. The Islamic Penal Code (adopted in 2013) also lists diya as one of the Islamic punishments, and Article 14 states that Islamic punishments include hadd, qisas, diya and ta'zirat.

The author of the book 'Diyah or Financial Punishment' is a proponent of this theory. Among Arab writers, Muhammad Rushdie, Muhammad Ismail and Ahmad al-Hasri support this theory. 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 (intention or negligence) and the proportionality of the crime and the punishment; and as specific punishments are determined for it in Islamic jurisprudence, then its amount cannot be reduced or increased.

Arguments provided by supporters of diya as a punishment

The most important arguments for this view can be summarized as follows:

Diya as as an alternative punishment

There are cases where diya is an alternative punishment, and anything which is an alternative punishment, will be a punishment itself. One is intentional homicide where avengers of blood pardon the offender and are satisfied with receiving diya. The other case is when qisas is impossible to be implemented for some reason and it is converted to diya; e.g. when the perpetrator dies or flees, making it impossible to implement qisas to a similar organ. Critics of the above argument point out that the first reason is incomplete, since the Islamic punishment for intentional homicide is qisas (retaliation), and diya is not an alternative punishment, but rather an agreement between the avengers of blood and the perpetrator.

The punitive function of diya

Diya has a punitive function and it punishes the offender and prevents him from killing or injuring again, and since punishment is one of the essential features of any punishment, anything with a punitive function will be a punishment.

In response to this argument, it is stated that the feature of punitive function does not necessarily equate to punishment, since such a function or effect is also present in financial compensation, which is merely a civil issue.

Setting diya for committing a crime against the deceased

The Holy Shari'a law has set diya for committing a crime against the deceased, while harm to a deceased person does not make sense; thus, it must be a penalty imposed for the commission of a heinous and haram (forbidden) act.

In response to this argument, some authors argue that diya for committing a crime against the deceased is different from the diya for committing a crime against a living person, and even against an unborn child; firstly because it does not belong to the heir, and secondly because it is not clear that the payment of diya is obligatory in cases of committing the crime accidentally. Therefore, some jurists stipulate that the payment of diya is not obligatory for committing a crime against the deceased if it is incurred accidentally. Diya is intensified in certain cases such as sacred months or in special sites, such as the holy shrine of Mecca. This intensification is due to the desecration of a sacred month or a holy site, and this is clearly a punishment. If diya was solely a compensation for damage, then time and place should have no effect on its amount. Some jurists have stipulated that intensified diya is a punishment which results from desecration.

On the other hand, some jurists state that the philosophy of intensified diya is basically to honor the sanctity of the deceased during the sacred months, like respecting the honor of men by women or Muslims by infidels, and it has nothing to do with punishment or chastisement; that is why diya is intensified even in the case of accidental killing. After all, intensified diya is not clearly accepted by Muslim jurists and no justification has ever stated that it is a punishment.

Criticisms of diya as a punishment

Evidence for the theory of diya as a punishment has been criticized and questioned by scholars. Two types of problems are raised in criticizing the evidence provided by the supporters of this theory: Firstly, the problems with the incomplete arguments for this view, and secondly, the contradictions and inconsistencies it faces. Among the criticisms on the contradictory arguments, we can point to the statement that diya belongs to the wise elders in some cases, while punishment of the innocent is an evil action, or that if diya is a punishment, it should be paid into the national treasury, while it is given only to the victims or avengers of blood.

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