In recent times, the law of Diyat as stated in our Fiqh has remained a subject of debate and discussion. One group of scholars insisted that a woman's Diyat is half a man's Diyat, while another group insisted that according to the Quran and Hadith, there is no difference between the Diyat of a man and a woman. Since we view this whole law from a totally different angle, we present here our interpretation of the law.
The Nature of Diyat:
The first issue relates to ascertaining the nature of Diyat. One group of our scholars regards it as the monetary value of human life, while another group considers it to be the monetary compensation of the economic loss inflicted by the slayer upon the family of the murdered person.
In our consideration both these views are incorrect. The first one is based upon a misconception. In the pre-Islamic Arab society, cases of murder were usually settled by Saar (Revenge), Qisaas and Diyat respectively. As is evident from the order, Saar was the real objective of the Arabs. They used to believe that the soul of the deceased is transformed into a bird which flies away, and unless revenge is taken, wanders about in the wilderness crying out Isqooni! Isqooni! (quench my thirst! quench my thirst!) While some of them believed that only the slain person whose death had been avenged remained alive in his grave, and if his murder is not avenged his soul dies and darkness descends in his grave. Due to these beliefs they always preferred Saar and accepted Qisaas only when they could not help it, not to speak of Diyat. Ummi Shamla says:
Fa yaa shamlu shammir watlubil qauma billazee
Usibta wa laa taqbal qisaasanwwa laa 'aqlaa.
[‘Therefore, O Shamla! rise and get ready to avenge the harm inflicted upon you by your enemies and listen! Do not accept Qisaas at any cost.’]
Abbas Bin Mirdaas, while inciting Amir, a tribesman of the Khuza'ah tribe to revenge says:
Wa laa Tatma'an maa ya'lifunaka innahum
Atauka 'alaa qurbaahumu bilmuthammali
[‘And don’t even think about the Diyat they are tempting you with, for inspite of having a blood relationship they have brought a deadly poison for you.’]
In this matter, the severity of their emotions, even after accepting Islam can be seen from the following verses of Miswar Bin Ziyadah, when he was offered seven Diyats upon the murder of his father by the governor of Medina, Saeed Bin Al A'as. He says:
Aa ba'ad allazee binna'afi na'afi kowaikiebin
Raheenati ramsin zee turaabin wa jandali
[‘What! after the person who was burried at the foot of Mount Kowaikab in a grave of mud and stone.’]
Uzukkaru bilbuqyaa 'alaa mun asaabanee
Wa buqyaaya anni jaahedun ghairu mu'tili
[I am being advised to show mercy upon a cruel person who has inflicted me with this grief. The only mercy I can show is to take revenge at all costs.]
Fa in lum anal tha'ree menal yaumi aau ghadin
Bani ammenaa faddahru zoo mutatawwali
[‘O the sons of my paternal uncle, it does not matter if today or tomorrow, I am not able to take revenge, for this world has a long life.’]
Fa laa yad'unee qaumee laiyaumi kareehatin
la in lum u'ajjil zarbatan aau u'ajjali
[‘If, without any hesitation, I do not attack my enemies or become a target of their attack, my nation should never call me for any battle.’]
Aa nakhtum 'Alainaa Kalkalal harbi marratan
Fa nahnu muneekhuhaa 'alaikum bekalkali
[‘Now you have placed the chest of war upon us; so listen! we have also decided that unless we place this chest upon you, we would not remain at ease.’]
Yaqoolu rijaalum maa useeba lahum abun
Wa laa min akhin aqbil 'alal maali tu'qali
[‘Those people are offering me Diyat and urging me to accept money, whose fathers and brothers never fell prey to the sword of a killer.’]
Hence, it was a result of these emotions that they considered the acceptance of Diyat as shameful, and regarded it to be equivalent to selling the blood of the murdered person. Rabiya Bin Ubaid, a poet of the tribe Bani Nasar says:
Aa zuwaabu Innee lum ahabka wa lam aqum
Lilbai'i 'inda tahadhdhuril ajlaabi
[‘O Zwaab! I have not forgiven your murder; nor in the midst of business in the market of Okaaz am I selling your blood (accepting your Diyat.’)]
However, it is evident that such emotional utterances have got nothing to do with the actual nature of Diyat. They can only be regarded as sentimental statements over the loss of dear ones, and one often come across such instances in one's life. Whoever have tried to ascertain the nature of Diyat from them, can only be regarded as those who have no linguistic appreciation. They probably did not realize that human life or human limbs are priceless. No mother, father, brother or son, at any rate, can ever be willing to accept Diyat on the pretext that the monetary worth of the deceased son, brother or father is what is actaully being received. Hence, if we accept this opinion, the result, obviously, would be that a society would never benefit from the expediency upon which the law itself is based. On these grounds, we regrettably reject this opinion.
As far as the people are concerned who regard it to be a monetary compensation of the inflicted economic loss, they must realize that the basic nature of a thing must exist in every small or large part it constitutes. Even a cursory look at the law of Diyat reveals that Diyat is not given solely in cases of murder, but in case of loss of a human organ or limb like a nose, ear, eye and tooth as well. It is quite evident that the loss of such limbs does not result in any economic loss for the affected person or family. After all, if a toe or a finger, or even a tooth is lost, what financial demage is incurred? Apart from other reasons,this internal contradiction in the premises of the view, is enough to prove it a fallacy.
Since both the views about the nature of Diyat are not correct, then what is the correct view point? As both the Quran and Hadith are silent upon this issue, it is necessary to have a recourse to ancient Arabic traditions for a solution.
We find alot of instances, in which the subject of Diyat has been discussed in the pre-Islamic Arabic poetry. Episodes of homicide and murder were so rampant in the ancient Arab society, that the subjects of `Saar', `Qisaas' and `Diyat' were often versified in their poetical compositions. No doubt, they often used to challenge the sense of honour of those who accepted Diyat, and provoked them to revenge. But apart from these sentimental utterances, we find many instances where a more serious treatment of the topic reveals very clearly their own concepts about the actual nature of Diyat.
A careful study shows that in such instances they used the word gharaamah or maghram which literally means `fine' or `penalty'. Just as in English these words imply the exaction of fine from an offender as a punishment for a crime, the word gharaamah denoted this meaning in the pre-Islamic Arabic language. We have indicated before that the Arab poets used this word in instances when they talked about the nature of Diyat. To quote Zuhair:
Yunajjimuhaa qaumun liqaumin gharaamatan
Wa lum yuhareeqoo bainahum mil'a mehjami
[‘In small lots those camels were being given by one nation to the other, as a fine; though the givers did not even shed a drop of blood among those who were receiving it.’]
This same concept about Diyat continued to persist in later times as well. Ajeer As-salooli, a poet of the Ummayid period has said:
Yasurruka mazloomun wa yardheeka zaalimun
Wa yakfeeka ma hammaltahu 'inda maghrami
[‘If you are oppressed he makes you happy by taking revenge, and if you are the oppressor, he pleases you by taking your side, and as a result of this oppression, when you are paying a fine (Diyat) whatever amount you burden him with, he alone pays it.’]
Hence, it is quite evident from this discussion that Diyat is neither a monetary compensation for an economic loss nor a monetary worth of human life. By nature, it is gharaamah i.e. a fine or penalty imposed on the criminal in lieu of Qisaas in case of intentional murder and indeed in all cases of un-intentional murder.
Explanation of the Law:
The injunctions which relate to Diyat in cases of un-intentional murder are stated in Surah Nisaa. According to the Quran every believer is forbidden to kill another believer, unless he does so by mistake, in which case the Quran says:
And whoever kills a believer by mistake, he must set free a Muslim slave, and pay Diyat to the family of the victim, unless they forgive it. [4:92]
In the above verse the words diyatum musallamatun ilaa ahlihee have been used. Their most appropriate grammatical analysis in our consideration is to regard them as the inchoative (mubtadaa) of a suppressed enunciative (khabar) i.e. fa ‘alaihi tahreeru raqabatem mu'minatinwwa diyatum musallamah. The word Diyat in these verses occurs as a common noun, about which we all know that its meaning is determined by the context in which it is used, and by its linguistic and customary usage. For example, consider the Quranic verse: In nallaaha ya'murukum an tazbahoo baqarah (Verily, God ordains you to sacrifice a cow). The word baqarah is a common noun. Therefore, it is absolutely certain that the Jews were ordained to sacrifice an animal whose name in the linguistic and customary usage of the Arabs was baqarah. If they had sacrificed any cow they would have, no doubt, fulfilled this divine directive. On the other hand, let us have a look at the phrase: Aqeemus salaat. The word as-salat occurs in this verse as a proper noun. In technical terms it is mujmalun muftaqirun ilal biyaan i.e. a compact statement which needs an explanation, and even after ascertaining its meaning from linguistic and customary usage, it is necessary to turn to the Law Giver for an explanation of the meaning it implies.However, had it been mentioned in the Quran as a common noun, the implied meaning would have been evident. We would have clearly understood that we are being directed to establish something which was traditionally denoted in pre-Islamic Arabic language by the word salaat. In other words, if someone obligates us about something and mentions the obligated thing as a common noun, it simply means, that he has directed us to obey whatever the general custom and tradition is in this regard Also, since a common noun denotes generality, every meaning associated with it shall be considered as implied, without any specification, lest something within the context poses a hindrance. Therefore, in the above verse `Diyat' means something which in general custom and usage is called `Diyat'. And the words diyatum musallamatun ilaa ahlihee simply mean that the family of the murdered person should be given what the general custom and tradition terms as `Diyat'. In case of intentional murder, the Quran directs us to pay `Diyat' according to the m'aroof or the general custom and tradition:
Then for whom there has been some remission from his brother, he should follow [the remission] according to the m'aroof and pay Diyat with goodness. [2:178]
It is evident from the above mentioned verses of Surah Nisaa and Surah Baqarah that in case of intentional as well as un-intentional murder, Diyat should be paid according to the custom and tradition of the society. In his own period our Prophet(pbuh) obeyed this Quranic injunction by following the prevailing m'aroof of the Arab Society. Whatever has been stated in the Traditions is just an explanation of this m'aroof during that period. It should be clear that no directive of our Prophet(pbuh) has been mentioned in the Hadiths which obligates us to follow it.
An important question that needs considerable explanation concerns the actual Arab custom and tradition about Diyat. If we study the pre-Islamic Arabic poetry and the recorded account of battles between various Arab tribes, we come to know that the Diyat of every person whose blood relation with his tribe was sareeh (definite), was fixed at ten camels. The Diyat of an ally or a maid was half of the sareeh and the Diyat of a woman was also half that of a man. The author of "Aghaani" while describing the events of a battle between the tribes of Aus and Khazraj writes:
And in their custom, the Diyat of a maulaa i.e. an ally was five camels and that of a sareeh or a person whose blood relation with some tribe is definite was fixed at ten camels. [Vol:3,Page:40])
According to Jawaad Ali the author of ‘Al Mufassal Fee Taareekh il Arab Qablal Islam’:
If the slain person was a maid's son then his Diyat was half that of a sareeh and the Diyat of a woman was half that of a man. [Vol:5,Page:592]
Some tribes because of their high social status accepted twice the actual amount of Diyat, while some paid twice the actual amount as a favour and blessing upon the other tribe. We quote again from ‘Al-Mufassal’:
It is said that Ghataarif or the people of the tribe Haris Bin Abdullah Bin Bakar Bin Yashkur used to accept two Diyats for their slain, and if it became obligatory for them to pay Diyat, then they used to pay a single Diyat. Likewise, for Bani Amir Bin Bakar Bin Yashkur, whose ancestor Amir was called Ghatrif, two Diyats were fixed, while for the rest of the nation it was single. Similarly, according to most traditions the tribe of Bani Aswad Bin Razan in pre-Islamic times used to pay two Diyats to others. [Vol:5,Page:593]
Jawaad Ali goes on to write:
This regularity in paying two Diyats was not because of some weakness but as a token of their blessing and kindness upon the family of the slain. [Al-Mufassal,Vol:5,Page:593]
The Diyat of kings called the Diyat-ul-Mulook was fixed at a thousand camels. Karaad Bin Hansh Assaaridi while eulogising Bani Fazaarah says:
Wa nahnu rahannal qausa summut foodeyat
Bi alfin 'alaa zahril fazaariyyi Aqra'aa
[And we pledged a bow, and from the wealth of Fazaari a thousand camels were given as remittance for this.]
Bi'ashri maieena lil mulooki sa'aa biha
Liyufiya Sayyar ubnu Amrin fa asra'aa
[i.e. ten hundred camels which is the Diyat of kings. Sayyar Bin Amar strived to carry out this promise and fulfilled the responsibility without delay.]
A few years before the birth of our Prophet (sws) this custom underwent a drastic change. It is said that Abdul-Muttalib, the grandfather of our Prophet (sws) vowed that if God would bless him with ten sons, he would slaughter one of them as a sacrifice. And when God fulfilled his wish, he set out to fulfil his own pledge. A lot was cast to select which among the ten sons should be sacrificed. It fell upon Abdullah: so, when Abdul Muttalib was on his way to sacrifice him, some people stopped him and suggested to sacrifice a camel instead. We have indicated before that during that time the quantity of Diyat was fixed at ten camels. Hence, once again, a lot was cast, this time in the name of Abdullah and ten camels. Everytime it fell upon Abdullah until the number of camels reached one hundred. According to the traditions, after this event the quantity of Diyat among the Arabs, particularly the Quraysh was re-fixed at a hundred camels. In the words of Ibne-Abbas:
During that period, Diyat was ten camels. It was Abdul Muttalib who first of all fixed it at one hundred camels. As a result, this quantity was adopted by the Quraish and the Arabs. [At-Tabaqaat ul Kubra, Ibne Saad, Vol:1,Page:89]
Zuhair has mentioned the same amount of Diyat in his ‘Mu'allaqah’. While eulogising two Arab Chiefs, Haram Bin Sanan and Haris Bin Auf, because the two had paid three thousand camels as Diyat to stop a war with 'Abas and Fazaarah, he says:
Tu'affal kolumo bil ma'eena fa asbahat
Yunajjemuhaa mun laisa feehaa bi mujrami
[By means of camels the wounds shall be healed. So those who were just innocent began to pay these camels in small lots.]
It is evident from this couplet that during this war, the Diyat of the slain was paid in installments.
Quoting from ‘Aghaani’:
‘Hence it was these three thousand camels which were given in three years.’ [Vol:10,Page:297]
In this ‘Mu'allaqah’ Zuhair has pointed out that `Efaal' or young camels were given as Diyat.
Fa asbaha yuhdaa feehim min tilaadekum
Maghaanemu shattaa min efaalin muzannami
(From your inherited wealth various which are `Efaal' i.e. well bred young camels are sent towards the families of the slain.)
About this specification of `Efaal' Zauzani, a commentator of ‘Mu'allaqaat’ writes:
The poet has particularly mentioned young camels because two year olds, three year olds and four year olds, were only given as Diyat. (A commentary on Mu'allaqaat, Zauzani, Page 8)
The Diyat of wounds was also customary in Arab. A study of pre-Islamic Arabic reveals that the words `Arsh' and `Nazr' were used in this meaning besides others. According to ‘Lisaan-ul-Arab’:
The word `Arsh' is infact `Kadsh' i.e. bruise or injury. Then it began to be used for the money which was exacted as Diyat for wounds. The people of Hejaz used to use the word `Nazr' for this. (Vol:6,Page:263)
As we have mentioned above, it was this traditional Arabic custom which our Prophet (sws) while obeying the Quran, enforced during his own time. Consequently, in many Hadiths it has been mentioned that the Prophet (sws) continued with the traditional Arabic custom in the matters of Diyat, which had existed before his own annunciation. To further quote Ibn Abbas:
In the Quraish and Arab the quantity of Diyat adopted was one hundred camels. Consequently, later on the prophet continued with it. (At-Tabaqat ul Kubra, Ibne-Saad, Vol:1, Page:89)
In another Hadith, this matter has been stated in the following way:
A treaty between the Ansaar and the Quraish was documented by the Prophet, in which it was written down that the mahaajireen of Quraish would continue with their previous state and the matter of Diyat would be conducted between them just as before. (Lasaan-ul-Arab,Vol:11,Page:462)
On the contrary, in Yemen the custom was that in various forms of murder and in various types of wounds the amount of Diyat was fixed by the ruler. But when Yemen became a part of the Islamic State during the Prophet's time, a letter was sent by him to the chiefs of Yemen in which he fixed the same quantity of Diyat for them which was enforced in his own territory. Dr. Jawaad Ali while writing about this Arabic custom in his book ‘Al-Mufassal Fi Tareekh il Arab Qablal Islam’ says:
Diyat was also customary in south Arab but no regular legislation had been done in this regard, instead the determination of its amount had been left upon the discretion of the ruler. (Vol:5,Page:593)
After this explanation about the law of Diyat, it becomes evident that Islam has not prescribed any specific amount for Diyat nor has it obligated us to discriminate in this matter between a man or a woman, a slave or a free man and a Muslim or a non-Muslim. The law of Diyat was in force in Arab before the advent of Islam. The Quran has directed us to pay Diyat just according to this law both in case of intentional as well as un-ntenional murder. By this Quranic directive Diyat, now, has become an eternal law of the Shariah for all times and for every society; however its quantity, nature and other related affairs have been left by the Quran upon the customs and traditions of a society. The Prophet (pbuh) and his rightly ginded caliphs decided all cases of Diyat according to the customs and traditions of the Arab society during their own times. The quantities of Diyat which have been mentioned in our books of Hadith and Fiqh are in accordance with this custom and tradition, which itself has its roots in the social conditions and cultural traditions of the Arabs. Since then, the wheel of fortune has revolved through fourteen more centuries, and the tide of time has sped past innumerable crests and falls. Social conditions and cultural traditions have undergone a drastic change. In present times, it is not possible to pay Diyat in the form of camels nor is it a very wise step to fix the amount of Diyat on this basis. The nature of 'Aaqilah has completely changed, and various forms of un-intentional murder have come into existence which could never have even been imagined before. We all know that the guidance provided by the Qur’an is for all times and for every society. Hence, in this regard it has directed us to follow the m’aroof which may change with t ime. By this Qur’anic directive every society is to obey its customs, and since in our own society no law about Diyat previously exists, those at the helm of our state can legislate assume the status of our m’aroof. Those in authority in any society re-fix and re-structure the m’aroof keeping in view the collective good of the masses. We quote from ‘Nashr-ul-Urf’ the work of a celebrated Hanifite scholar, Ibne Aabideen:
‘It should be noted that juristic issues either stand proven by a categorical injunction which is the first type, or stand proven by Ijtihaad and Opinion (which is the second type). Most issues of the second category are based by the Mujtahids upon the customs and traditions of a particular period in such away that if they would have been present in a period having a different custom and tradition, they would have given a different opinion. Hence, about the conditions of Ijtihaad they also state the condition that it is necessary to have a clear understanding of the habits and common practices of the people, because with the change in times a lot of the directives change. This may be due to a number of a reasons. For example, a change in the general custom and tradition, requirement of a situation, a fear of disorder in the general condition of the people that if a directive is continued in its original state, it might create difficulties for them or inflict a loss upon them, which would be against the norms of the Shariah that are based upon facility, comfort, and prevention of damage and disorder.’ (Page 125)
(Translated from Ghamidi’s ‘Meezaan’)