Diya (Islam)

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Diya (Arabic: دية‎; plural diyāt, Arabic: ديات‎) in Islamic law, is the financial compensation paid to the victim or heirs of a victim in the cases of murder, bodily harm or property damage. It is an alternative punishment to qisas (equal retaliation); in Arabic, the word means both blood money and ransom, and it is spelled sometimes as diyah or diyeh.[citation needed]

It only applies when victim's family want to compromise with the guilty party; otherwise qisas applies.

Diya compensation rates have historically varied based on the gender and religion of the victim. Muslim women victims have typically been compensated at half the rate as Muslim male victims, while non-Muslims compensation rates have varied between 1/16 to 1/2 of a Muslim, for an equivalent case.[1][2][3]

Basis in Scripture[edit]

The "Qur'an" specifies the principle of Qisas (i.e. retaliation) and compensation (diyah) in cases where one Muslim kills another Muslim.[4]

It is not for a believer [Muslim] to kill a believer unless (it be) by mistake, he who hath killed a believer by mistake must set free a believing slave, and pay the diya to the family of the slain unless they remit it as a charity. If he (the victim) be of a people hostile unto you, and he is a believer, then (the penance is) to set free a believing slave. And if he cometh of a folk between whom and you there is a covenant, then the diya must be paid unto his folk and (also) a believing slave must be set free. And whoso hath not the wherewithal must fast two consecutive months. A penance from Allah. Allah is Knower, Wise.

— Quran 4:92

Hadith also mention it.

Narrated Abu Juhaifa: I asked 'Ali "Do you have anything Divine literature besides what is in the Qur'an?" Or, as Uyaina once said, "Apart from what the people have?" 'Ali said, "By Him Who made the grain split (germinate) and created the soul, we have nothing except what is in the Quran and the ability (gift) of understanding Allah's Book which He may endow a man, with and what is written in this sheet of paper." I asked, "What is on this paper?" He replied, "The legal regulations of blood-money [diya] and the (ransom for) releasing of the captives, and the judgment that no Muslim should be killed in Qisas (equality in punishment) for killing a Kafir (disbeliever)."

Narrated Hisham's father: 'Umar asked the people, "Who heard the Prophet giving his verdict regarding abortions?" Al-Mughira said, "I heard him judging that a male or female slave should be given as a blood-money [diya]. 'Umar said, "Present a witness to testify your statement." Muhammad bin Maslama said, "I testify that the Prophet gave such a judgment."

Umar ibn Abd al-Aziz, an early caliph admired for his piety and scholarhip, ruled on Diya:

Yahya related to me from Malik that he heard that Umar ibn Abd al-Aziz gave a decision that when a Jew or Christian was killed, his blood-money was half the blood-money [diya] of a free Muslim.

Application in Islamic law[edit]

Islamic law treats homicide and unintentional homicide (not just bodily injury and property damage), as a civil dispute between believers,[5] rather than corrective punishment by the state to maintain order,[6] the offender must either face equal retaliation known as sisas ("Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." Quran 5:45), pay diyat to the victim or heirs of the victim, or be forgiven by the victim or victim's heir(s).[7][8]

In all cases of death, injury, and damage, under traditional sharia doctrine, the prosecutor is not the state, but only the victim or the victim's heir (or owner, in the case when the victim is a slave).[8] Diyah is similar in practice to "out-of-court settlement" in a tort case,[9] but with important differences. Under sharia practice, tort-like civil liability settlement is limited to property damage, while in the cases of bodily injury and death, the "blood money" diyah compensation is fixed by a formula (such as the value of certain number of camels),[10][11] the victim, victim's heir or guardian may alternatively forgive the bodily injury or murder as an act of religious charity (expiation of their own past sins).

The value of diyat, under all schools of sharia, varied with the victim's religion, sex and legal status (free or slave),[11] for a free Muslim male, the diyah value of his life was traditionally set as the value of 100 camels. This was valued at 1000 dinars or 12000 dirhams, corresponding to 4.25 kilograms of gold, or 29.7 to 35.64 kilograms of silver.[11] The diyah value in case the victim was a woman, non-Muslim or slave varied in the sharia of different schools of Islamic law,[11] the diyah must be paid by the murderer or the estate of the murderer. In some cases, such as when the murderer is a juvenile, the diyah is owed by the family of the murderer (Aqila);[12] in other cases, the group ('Aqila) that must pay diyah to the victim or victim's heirs is the tribe or urban neighbors of the culprit.[13]

For women and non-Muslims[edit]

Diyah is not the same for Muslim women and Muslim men in sharia courts, with Muslim woman's life and diyah compensation sentence being half as that of a Muslim man's life.[14][15] Muslims and non-Muslims are treated as unequal in the sentencing process, in cases of unintentional deaths.[2][3]

In early history of Islam, there were considerable disagreements in Muslim jurist opinions on applicability of qisas and diyah when a Muslim murdered a non-Muslim (dhimmi, musta'min or slave).[16] Most scholars of Hanafi school of sharia ruled that, if a Muslim killed a dhimmi, qisas was applicable against the Muslim, but this could be averted by paying a diyah. In one case, the Hanafi jurist Abu Yusuf initially ordered qisas when a Muslim killed a dhimmi, but under Caliph Harun al-Rashid's pressure replaced the order with diyah if the victim's family members were unable to prove the victim was paying jizya willingly as a dhimmi.[17] The Maliki, Shafi'i and Hanbali code of sharia have historically ruled that Qisas does not apply against a Muslim, if he murders any non-Muslim (including dhimmi) or a slave for any reason.[18][19] A diyah was payable instead, the early Hanafi and Hanbali Sunni jurists considered the payable diyah for Muslim and non-Muslim male victims to be same, while the Maliki school considered a non-Muslim male's value of life as worth half of a Muslim, and the Shafi'i school considered it worth a third.[20] The Ja'fari school considered a non-Muslim male victim's value to be only 800 dirhams in contrast to 10000 dirhams for a Muslim male victim,[11] the compensation value payable to the owner of a slave by a Muslim murderer, was the market price paid for the slave.[18] The diyah for a murdered woman was half than the diyah for a murdered man, in all fiqhs of Islamic law.[20] Further, in Hanafi and Maliki sharia doctrines, a diyah was not payable to a non-Muslim from a murderer's estate, if the murderer dies for natural or other causes during the trial.[18]

If the victim was musta'min (nor diyah foreigner visiting), or an apostate (converting from Islam to another religion), neither qisas applied against the Muslim who killed the victim.[16][20]

Jurists of different schools of Islamic jurisprudence assign different values to non-Muslims. According to the Hanbali sharia, the life of a Christian or Jew is worth half that of a Muslim, and thus the diyah awarded by modern-era Hanbali courts is half that awarded in case of Muslim's death.[3] Hanafi and Maliki fiqh also consider the life of a Christian or Jew to be worth half a Muslim's life,[2] but Shafi'i schools of jurisprudence consider it to be worth a third that of a Muslim. The legal schools of Hanafi, Maliki and Shafi'i Sunni Islam as well as those of Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.[2]

Application in contemporary Muslim countries[edit]

Countries whose law follows the Shari'a, including Saudi Arabia, Iran[21] and Pakistan,[22] also enacted laws for Qisas and Diyat. In Saudi Arabia, for example, the heirs of a Muslim victim have a right to settle for Diya instead of the execution of the murderer.[23]

However, the diyah compensation rights of Muslims and non-Muslims have varied among Muslim nations and remain unequal since the 1950s through the 2010s.[24][25][3]

The customary law of the Somali people also recognizes the obligation of diyah, but define it as being between subgroups, or mag, who may be part of different clans or even the same clan.[26]

Some of these countries also define, by lawful legislation, a hierarchy of compensation rates for the lives of people; religious affiliation and gender are usually the main modulating factors for these Blood Money rates.

Saudi Arabia[edit]

In Saudi Arabia, when a person kills another, intentionally or unintentionally, the prescribed blood money must be decided by sharia court.

The amount of compensation is based on the percentage of responsibility. Blood money is to be paid not only for murder, but also in the case of unnatural death, interpreted to mean death in a fire, industrial or road accident, for instance, as long as the responsibility for it falls on the accused, the diyah compensation amount depends on the religion of the victim.[27]

Human Rights Watch and United States' Religious Freedom Report note that in sharia courts of Saudi Arabia, "The calculation of accidental death or injury compensation is discriminatory; in the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims (Buddhists, Hindus, Jains, Sikhs, Animists, Atheists) are only entitled to receive one-sixteenth of the amount a male Muslim would receive".[3][28][29]

While Saudi judges have the last say in any settlement, as of 2011, diya price for a Muslim man, in Saudi Arabia, was SR300,000 ($80,000) for an accidental death and SR400,000 ($106,666) in premeditated murder.[30] (The price was raised that year due to a rise in the price of camels.)[30]

Diyah in Saudi has been controversial, as in a 2013 case, where a father molested and murdered his five-year-old daughter, but avoided jail by paying money to her mother.[6]

Iran[edit]

During the four haraam months; namely Dhu al-Qi'dah, Dhu al-Hijjah, Muharram, and Rajab; when wars and killings were traditionally discouraged in the Arabian Peninsula and later in the larger Islamic world, the blood money rates is increased by a third.[31]

In Iran, as in Saudi Arabia, the rates for bloody crimes committed against Iranian non-Muslims used to be half the rate prescribed for Muslim victims, but a change was enacted in 2004 by amending article 297 of the 1991 Islamic Penal Code, authorizing equal "blood money" (diyeh) for the death of Muslims and non-Muslims.[32] However, according to the 2006 US State Department Religious Freedom Report on Iran, "all women and Baha'i men were excluded from the equalization provisions of the bill; according to the Iranian law, Baha'i blood is considered Mobah, meaning it can be spilled with impunity".[32]

Iraq[edit]

In Iraq, the Bedouin tribes carry on the practice of demanding blood money, though this does not necessarily obviate the proceedings of the secular judicial system.[33]

Pakistan[edit]

Pakistan, which is predominantly Hanafi Sunni Muslim nation, introduced Qisas and Diyat Ordinance in 1990, amending sections 229 to 338 of Pakistan Penal code.[34] The new Ordinance replaced British era criminal laws on bodily hurt and murder with sharia-compliant provisions, as demanded by the Shariat Appellate Bench of Pakistan's Supreme Court, the Criminal Procedure Code was also amended to give legal heirs of a murdered person to enter into compromise and accept diyah compensation, instead of demanding qisas-based retaliatory penalties for murder or bodily hurt.[34] The democratically elected government of Nawaz Sharif, in 1997, replaced the Ordinance by enacting the qisas and diyah sharia provisions as the law, through an Act of its Parliament.[35] The sharia-compliant Qisas and Diyat law made murder a private offense, not a crime against society or state, and thus the pursuit, prosecution, and punishment for murder has become the responsibility of the victim's heirs and guardians.[35] The Pakistan Penal Code modernized the Hanafi doctrine of qisas and diya by eliminating distinctions between Muslims and non-Muslims.[36]

Controversies arising from the Diyat law of Pakistan involve cases of honor killings of girls, where the killers were employed by the same family members of the victim who under the Diyya law have the power to forgive the killer — and did forgive him.[35][37] Another issue is the intentional murder or bodily harm of poor people by wealthy individuals, where the only punishment the perpetrators suffer is paying monetary compensation that constitutes a small fraction of their income or wealth.[38]

Related concepts[edit]

Daaif notes that a concept similar to diyah was present in pre-Islamic Arabia, where it was paid in terms of goods or animals rather than cash,[39] at least one western scholar of Islam (Joseph Schacht) translates diya as weregeld[40] (Weregeld is also known as "man price", and was a value placed on every being and piece of property to paid -- in the case of lose -- as restitution to the victim's family or to the owner of the property. It was used, for example in the Frankish Salic Code).

See also[edit]

References[edit]

  1. ^ Aaron Spevack (2014), The Archetypal Sunni Scholar: Law, Theology, and Mysticism, SUNY Press, ISBN 978-1438453712, p. 81
  2. ^ a b c d Anver M. Emon (2012), Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, Oxford University Press, ISBN 978-0199661633, pp. 234-235
  3. ^ a b c d e State Department of the U.S. Government (2012), SAUDI ARABIA 2012 INTERNATIONAL RELIGIOUS FREEDOM REPORT, p. 4
  4. ^ Richard J. Terrill (2012), World Criminal Justice Systems: A Comparative Survey, Routledge, ISBN 978-1455725892, pp. 559
  5. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 283-288
  6. ^ a b Malik, Nesrine (5 April 2013). "Paralysis or blood money? Skewed justice in Saudi Arabia". The Guardian. Retrieved 14 February 2015. 
  7. ^ Quran 4:92, and Quran 5:45
  8. ^ a b Rudolph Peters (2006), Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 44-49, 114, 186-187
  9. ^ Malone, Noreen (20 March 2009). "How Does Blood Money Work?". Slate. Retrieved 14 February 2015. 
  10. ^ Eugene Cotran and Chibli Mallat (1995), Yearbook of Islamic and Middle Eastern Law - 1994, Volume 1, Kluwer Law Publishers, ISBN 9041108831, pp. 275
  11. ^ a b c d e Rudolph Peters (2006), Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 51
  12. ^ Eugene Cotran and Chibli Mallat (1995), Yearbook of Islamic and Middle Eastern Law - 1994, Volume 1, Kluwer Law Publishers, ISBN 9041108831, pp. 275
  13. ^ Chibli Mallat (2007), Introduction to Middle Eastern Law, Oxford University Press, ISBN 978-0199230495, p. 18.
  14. ^ Arsani William, An Unjust Doctrine of Civil Arbitration: Sharia Courts in Canada and England, Stanford Journal of International Relations, Spring 2010, 11(2), pp. 40-47
  15. ^ M Kar (2005), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics (Ed: Suad Joseph, Afsāna Naǧmābādī), Brill, ISBN 978-9004128187, pp. 406-407
  16. ^ a b Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-50
  17. ^ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-43
  18. ^ a b c Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 169-170
  19. ^ J. Norman D. Anderson (2007), Islamic Law in Africa, Routledge, ISBN 978-0415611862, pp. 372-373
  20. ^ a b c Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 129-130
  21. ^ A Guide to the Legal System of the Islamic Republic of Iran, March 2006
  22. ^ WLUML: News and Views
  23. ^ AI REPORT 1998: SAUDI ARABIA, Amnesty International
  24. ^ J Anderson (1951), Homicide in Islamic Law, Bulletin of the School of Oriental and African Studies, Cambridge University Press, Volume 13, pp. 811-828
  25. ^ Ahmed Ali (1980), Compensation in Intentional Homicide in Islamic law, Journal of Islamic and Comparative Law, Volume 9, pp. 39-54
  26. ^ For a more detailed explanation of its role in Somali customary law, see I.M. Lewis, "Clanship and Contract in Northern Somaliland", Africa, 29 (1959), pp. 274-293
  27. ^ "I. DISPOSAL OF MORTAL REMAINS (LOCAL BURIAL/DESPATCH TO INDIA)" Consulate General of India, Jeddah, Retrieved on September 3, 2010.
  28. ^ Human Rights Watch (2004), Migrant Communities in Saudi Arabia
  29. ^ Saudi Arabia BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, US State Department, 2011 Report on International Religious Freedom (2011)
  30. ^ a b "Saudi Arabia triples blood money to SR300,000". Emirates 24/7 News. September 11, 2011. Retrieved 14 February 2015. 
  31. ^ Islamic Penal Code of the Islamic Republic of Iran - Book 4 - Article 299
  32. ^ a b U.S. State Department (2008-10-17). "International Religious Freedom Report 2006, U.S. State Department". 
  33. ^ "Blood Money and Iraqi Tribal Justice" by Jamie Tarabay. Weekend Edition Saturday, 9 December 2006. National Public Radio
  34. ^ a b Pros and cons of Qisas and Diyat law Dawn, Pakistan (September 16 2013)
  35. ^ a b c Stephanie Palo, A Charade of Change: Qisas and Diyat Ordinance Allows Honor Killings to Go Unpunished in Pakistan, 15 U. C. Davis Journal Int'l Law & Policy, Vol. 15 (2008-2009), pp. 93-118
  36. ^ Tahir Wasti (2009). The Application of Islamic Criminal Law in Pakistan. Brill. p. 49. 
  37. ^ Deborah Scolart (2013), Slavery and Criminal Law in Some Modern Islamic Countries: A Survey, World Journal of Islamic History and Civilization, 3(4), pp. 163-169
  38. ^ Mohammad Qadeer (2006), Pakistan - Social and Cultural Transformations in a Muslim Nation, Routledge, ISBN 978-0415492225, p. 172
  39. ^ Lahcen Daaif, "Le prix du sang (diya) au premier siècle de l’islam" dans Hypothèses 2006, (Panthéon – Sorbonne), 2007, p.339-340
  40. ^ Schacht, Joseph (1959) [1950]. The Origins of Muhammadan Jurisprudence. Oxford University Press. p. 187. 

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