The law of Diyat mentioned in the Qur’ān in connection with the directives of Qisās has generated the following questions in present times:
(1) Has the Sharī‘ah fixed the amount quantity of Diyat, and in accordance with this, is the Diyat of a woman half that of a man?
(2) What is the nature of Diyat? Is it a financial compensation for the loss suffered by the heirs of the slain or by the wounded person himself, or is it the price of life or a limb, or something besides these two?
As an answer to the first question, consider the following verses of the Qur’ān:
وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِنْ اللَّهِ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا (٤ :٩٢-٣)
It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must free one Muslim slave and pay Diyat to the heirs of the victim except if they forgive him. If the victim be a Muslim belonging to a people at enmity with you, the freeing of a Muslim slave is enough. But if the victim belongs to an ally, Diyat shall also be given to his heirs and a Muslim slave shall also have to be set free. He who does not have a slave, must fast two consecutive months. This is from Allah a way to repent from this sin: He is Wise, all-Knowing. (4:92-3)
The actual words of the verse are ‘دية مسلمة الى اهله’ (diyatun mussalamatun ilā ahlihi: paying Diyat to his heirs) Their most appropriate grammatical analysis in the opinion of this writer is to regard them as the inchoative (mubtadā) of a suppressed enunciative (khabr) ie, ‘فعليه تحرير رقبة مؤمنة و دية مسلمة’ (fa ‘alayhi tahrīru raqabatin mu’minatin wa diyatun musallamah: It is incumbent upon him to pay Diyat to his heirs). 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 Qur’ānic verse: ‘ان الله يا مركم ان تذبحوا بقرة’ (Innallāha ya’murukum an tadhbahū baqarah: Verily, God ordains you to sacrifice a cow)1. The word ‘بقرة’ (baqarah: cow) is a common noun. Therefore, it is absolutely certain that the Jews were directed to sacrifice an animal whose name in the linguistic and customary usage of the Arabs was ‘بقرة’ (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: ‘اقيموا الصلاة’ (aqīmu al-salāh: establish al-salāh). The word ‘الصلاة’ (al-salāh) occurs in this verse as a proper noun. In technical parlance, it is termed as ‘مجمل مفتقر الى البيان’ (mujmalun muftaqirun ila’l-bayān: a compact statement which needs an explanation), and if one is unable to ascertain its connotation 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 Qur’ān 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 ‘صلاة’ (Salāh). 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 the ‘معروف’ (ma‘rūf : the general custom and tradition) 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 the general custom and usage is called ‘Diyat’. And the Arabic words ‘دية مسلمة الى اهله’ (diyatun mussalamatun ilā ahlihi: paying Diyat to his heirs) simply mean that the family of the murdered person should be given what the general custom and tradition terms as ‘Diyat’.
In verse 178 of Sūrah Baqarah, where the directive of Diyat in case of intentional murder has been given, it has been qualified by the word ‘معروف’ (ma‘rūf: the general custom):
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ (١٧٨:٢)
Then for whom there has been some remission from his brother, [the remission] should be followed according to the Ma‘rūf and Diyat should be paid with goodness. (2:178)
It is evident from the above mentioned verses of Sūrah Nisā and Sūrah 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, the Prophet (sws) obeyed this Qur’ānic injunction by following the prevailing ‘معروف’ (ma‘rūf: the general custom) of the Arab Society. Whatever has been stated in the Āhadīth is just an explanation of this ‘معروف’ (ma‘rūf) during that period. It should be clear that no directive of the Prophet (sws) obligates Muslims to follow it.
An important question that needs considerable explanation concerns the actual Arab custom about Diyat. A study of pre-Islamic Arabic poetry and the recorded account of battles between various Arab tribes shows that the Diyat of every person whose blood relation with his tribe was ‘صريح’ (sarīh: definite), was fixed at ten camels. The Diyat of an ally or a maid was half of the ‘صريح’ (sarīh) and the Diyat of a woman was also half that of a man. The author of Aghānī while describing the events of a battle between the tribes of Aws and Khazraj writes:
وكانت دية المولى فيهم وهو الحليف خمسًا من الإبل ودية الصريح عشرا
And in their custom, the Diyat of a ‘مولى’ (mawlā: an ally) was five camels and that of a ‘صريح’ (sarīh: a person whose blood relation with some tribe is definite) was fixed at ten camels.2
According to Dr. Jawwād ‘Alī:
واما إذا كان القتيل هجينا فتكون ديته نصف دية الصريح وتكون دية المرأة نصف دية الرجل
If the slain person was a maid’s son, his Diyat was half that of a sarīh and the Diyat of a woman was half that of a man.3
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. Dr Jawwād ‘Alī writes:
روى إن الغطاريف وهم قوم الحارث بن عبد الله بن بكر بن يشكر كانوا يأخذون للمقتول منهم ديتين ويعطون غيرهم دية واحدة إذا وجبت عليهم وكان لبنى عامر بن بكر بن يشكروهم من الغطاريف أيضا وقد عرف عامر المذكور بالغطريف ديتان ولسائر قومه دية وورد إن بنى الأسود بن رزن كانوا يودون في الجاهلية ديتين ديتين
It is said that Ghatārīf or the people of the tribe Haris Ibn ‘Abdullāh Ibn Bakr Ibn Yashkur used to accept two Diyats for their slain, and if it became obligatory for them to pay Diyat, they used to pay a single Diyat. Likewise, for Banī ‘Āmir Ibn Bakr Ibn Yashkur, whose ancestor ‘Āmir was, in fact, called Ghatrīf, two Diyats were fixed, while for the rest of the nation it was single. Similarly, according to most traditions, the tribe of Banī Aswad Ibn Razan in pre-Islamic times used to pay double Diyat to others.4
He goes on to say:
ولم يكن هذا التحديد عن ضعف وانما هو رغبة منهم في الافضال على ذوى القتيل
This regularity in paying two Diyats was not because of some weakness but as a favour to the family of the slain.5
The Diyat of kings, called the Diyatu’l-Mulūk, was fixed at a thousand camels. Qarād Ibn Hansh al-Sāridī while eulogizing Banī Fazārah says:
ونحن رهنا القوس ثمت فوديت
بألف على ظهرا الفزارى اقرعا
Wa nahnu rahana’l-qawsa thummut fūdiyat
Bi alfin ‘alā zahri’l-fazāriyyi aqra‘ā
(And we pledged a bow, and from the wealth of Fazārīyyi a thousand camels were given as remittance for this.)
بعشر مئين للملوك سعى بها
ليوفي سيار بن عمرو فاسرعا
Bi‘ashri mi’īna li’l-mulūki sa‘ā bihā
Liyūfiya Sayyār ubnu ‘Amrin fa asra‘ā
(Ten hundred camels which is the Diyat of kings. Sayyār Ibn ‘Amr strove to carry out this promise and fulfilled the responsibility without delay.)
A few years before the birth of the Prophet (sws), this custom underwent a drastic change. It is said that ‘Abdu’l-Muttalib, the grandfather of the 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 ‘Abdullāh. So when ‘Abdu’l-Muttalib was on his way to sacrifice him, some people stopped him and suggested to sacrifice a camel instead. It has been 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 ‘Abdullāh and ten camels. Again, it fell upon ‘Abdullāh and the process was repeated 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 Ibn Abbās (rta):
كانت الدية يومئذ عشراً من الإبل وعبد المطلب أول من سن دية النفس مائة من الإبل فجرت في قريش والعرب مائة من الإبل
During that period, Diyat was ten camels. It was ‘Abdu’l-Muttalib who first of all fixed it at one hundred camels. As a result, this quantity was adopted by the Quraysh and the Arabs.6
Zuhayr has mentioned the same amount of Diyat in his ‘Mu‘allaqah’. While eulogizing two Arab chiefs, Haram Ibn Sanān and Hārith Ibn ‘Awf, because the two had paid three thousand camels as Diyat to stop a war between ‘Abas and Fazārah, he says:
تعفى الكلوم بالمئين فأصبحت
ينجمها من ليس فيها بمجرم
Tu‘affa’l-kulumu bi’l-mi’īna fa asbahat
Yunajjimuhā man laysa fīhā bi mujrimī
(By means of hundreds 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 after this war the Diyat of the slain was paid in installments. According to Aghānī:
وكانت ثلاثة آلاف بعير في ثلاث سنين
Hence it was three thousand camels which were given in three years.7
In this Mu‘allaqah, Zuhayr has pointed out that افال (Ifāl: young camels) were given as Diyat:
فاصبح يحدى فيهم من تلادكم
مغانم شتى من افال مزنم
Fa asbaha yuhda fīhimu min tilādikum
Maghānimu shattā min ifālin muzannamī
(From your inherited wealth, camels of various ages which are Ifāl ie, well bred young camels are sent to the families of the slain.)
About this specification of ‘افال’ (Ifāl), Zawzanī, a commentator of the Sab‘a Mu‘allaqāt writes:
خص الصغار لان الديات تعطى من بنات اللبون والحقاق والا جذاع
The poet has particularly mentioned young camels because only two-year olds, three-year olds and four-year olds were given as Diyat.8
The Diyat of wounds also existed in Arabia. A study of pre-Islamic Arabic reveals that the words ‘ارش’ (arsh) and ‘نذر’ (nadhr) were used in this meaning besides others. According to the Lisānu’l-‘Arab:
اصل الارش الخدش ثم قيل لما يوخذدية لها ارش واهل الحجاز يسمونه النذر
The word ‘ارش’ (arsh) is, in fact, ‘خدش’ (khadsh) ie, bruise or wound. Then it began to be used for the money which was exacted as Diyat for wounds. The people of Hijāz used the word ‘نذر’ (nadhr) for this.9
We have mentioned above that it was this Arabic custom which the Prophet (sws) while obeying the Qur’ān, enforced during his own time. Consequently, in some Āhadīth it has been mentioned that the Prophet (sws) continued with the Arabic custom in the matters of Diyat, which had existed before his own Prophethood. To further quote Ibn Abbās (rta):
فجرت في قريش والعرب مائة من الإبل فاقرها رسول الله صلى الله عليه وسلم على ما كانت عليه
Among the Quraysh and in Arabia, the quantity of Diyat adopted was one hundred camels. Consequently, later on the Prophet continued with it.10
In another Hadīth, which linguists present in support of the word ‘معقلة’ (ma‘qulah) and which has also been reported in slightly different words in the Musnad of Ahmad Ibn Hanbal, this matter has been stated in the following way:
كتب بين قريش والأنصار كتاباً فيه : المهاجرون من قريش على رباعتهم يتعاقلون بينهم معاقلهم الاولى
A treaty between the Ansār and the Quraysh was documented by the Prophet in which it was written down that the Muhājirīn of the Quraysh would continue according to their previous state and the matter of Diyat would be conducted between them as before.11
On the contrary, in Yemen (southern Arabia), 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 Jawwād ‘Alī, while writing about this Arabic custom, says:
وقد عرفت الدية عند العرب الجنوبيين كذلك ولم تحدد في القوانين وانما ترك أمر مقدارها ألي الملك
Diyat was paid according to the custom in southern Arabia also, 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.12
The epistle of the Prophet (sws) which he wrote to the people of Yemen13 is reproduced here:
أَنَّ مَنْ اعْتَبَطَ مُؤْمِنًا قَتْلًا عَنْ بَيِّنَةٍ فَإِنَّهُ قَوَدٌ إِلَّا أَنْ يَرْضَى أَوْلِيَاءُ الْمَقْتُولِ وَأَنَّ فِي النَّفْسِ الدِّيَةَ مِائَةً مِنْ الْإِبِلِ وَفِي الْأَنْفِ إِذَا أُوعِبَ جَدْعُهُ الدِّيَةُ وَفِي اللِّسَانِ الدِّيَةُ وَفِي الشَّفَتَيْنِ الدِّيَةُ وَفِي الْبَيْضَتَيْنِ الدِّيَةُ وَفِي الذَّكَرِ الدِّيَةُ وَفِي الصُّلْبِ الدِّيَةُ وَفِي الْعَيْنَيْنِ الدِّيَةُ وَفِي الرِّجْلِ الْوَاحِدَةِ نِصْفُ الدِّيَة ِ ]وَفِي الْيَدِ نِصْفُ الدِّيَةِ [ وَفِي الْمَأْمُومَةِ ثُلُثُ الدِّيَةِ وَفِي الْجَائِفَةِ ثُلُثُ الدِّيَةِ وَفِي الْمُنَقِّلَةِ خَمْسَ عَشْرَةَ مِنْ الْإِبِلِ وَفِي كُلِّ أُصْبُعٍ مِنْ أَصَابِعِ الْيَدِ وَالرِّجْلِ عَشْرٌ مِنْ الْإِبِلِ وَفِي السِّنِّ خَمْسٌ مِنْ الْإِبِلِ وَفِي الْمُوضِحَةِ خَمْسٌ مِنْ الْإِبِلِ وَأَنَّ الرَّجُلَ يُقْتَلُ بِالْمَرْأَةِ وَعَلَى أَهْلِ الذَّهَبِ أَلْفُ دِينَارٍ (نسائى : رقم ٤٥٨٣)
He who wrongfully kills a Muslim and his crime is legally proven shall be taken revenge from, except if the heirs of the murdered person agree to accept Diyat. In this case, the Diyat of life is one hundred camels and that of a nose also when it is completely cut off. The Diyat of a tongue or lips or testicles or the male reproductive organ or the back or both eyes is one hundred camels as well. The Diyat of a single foot [and a hand]14, however, is half. A wound which reaches the stomach and one which reaches the brain shall have one-third Diyat. The Diyat of an injury because of which a bone is displaced is fifteen camels. For each of the fingers of the hand and feet, the Diyat is ten camels, for the teeth it is five and for an injury because of which a bone is exposed, it is five as well. A man shall be executed in place of a woman and those who can pay Diyat only in the form of gold, the Diyat is one thousand Dinārs. (Nasā’ī: No. 4853)
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 Arabia before the advent of Islam. The Qur’ān has directed us to pay Diyat just according to this law both in case of intentional as well as un-intentional murder. By this Qur’ānic directive, Diyat, became an eternal law of the Sharī‘ah for all times and for every society; however its quantity, nature and other related affairs have been left by the Qur’ān upon the customs and traditions of a society. The Prophet (sws) and his Rightly Guided Caliphs (rta) decided all the cases of Diyat according to the customs and traditions of the Arabian society during their own times. The quantities of Diyat which are mentioned in our books of Hadīth 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. However, 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 ‘عاقله’ (Āqilah: community/tribe) has completely changed and various forms of un-intentional murder have come into existence which could never have been imagined before. We know that the guidance provided by the Qur’ān is for all times and for every society. Hence, in this regard, it has directed us to follow the ‘معروف’ (ma‘rūf: the general custom) which may change with time. As per this Qur’ānic directive, every society is to obey its custom, and since in our own society no law about Diyat previously exists, those at the helm of affairs of our state can either continue with the above mentioned Arab custom or re-legislate in this regard; whatever they do, if the society accepts this legislation, it will assume the status of our ‘معروف’ (ma‘rūf: the general custom). It is obvious that those in authority in any society can revise and re-structure the laws which are based on the ‘معروف’ (ma‘rūf: the general custom), keeping in view the collective good of the masses. Ibn ‘Ābidīn, a celebrated Hanifite scholar, writes:
اعلم أن لمسائل الفقهية أما إن تكون ثابتة بصريح النص وهى الفصل الأول واما إن تكون ثابتة بضرب اجتهاد ورأي وكثير منها ما يبنيه المجتهد على ماكان في عرف زمانه بحيث لوكان في زمان العرف الحادث لقال بخلاف ما قاله أولا ولهذا قالوا في شروط الاجتهاد انه لابد فيه من معرفة عادات الناس فكثير من الأحكام تختلف باختلاف الزمان لتغير عرف أهله أو لحدوث ضرورة أو فساد أهل الزمان بحيث لوبقى الحكم على ماكان عليه أولا للزم منه المشقة والضرر بالناس ولخالف قواعد الشريعة المبنية على التخفيف والتيسير ودفع الضرر والفساد
It should be noted that juristic issues either stand proven by a categorical injunction which is the first type, or stand proven by Ijtihād 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 a way that if they would have been present in this age which has a certain custom and tradition, they would have given a different opinion. Hence, about the conditions of Ijtihād, 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 reasons. For example, a change in the general custom, requirement of a situation or 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; this would be against the principles of the Sharī‘ah which are based upon facility, comfort, and prevention of damage and disorder.15
Consider now the second question: What is the nature of Diyat? In this matter, there are generally two views. One group of scholars regards it as the monetary value of human life, while another group considers it to be the monetary compensation of the financial loss inflicted by the murderer upon the family of the murdered person.
In the opinion of this writer, both these views are incorrect. The first one is merely based upon a misconception. In the pre-Islamic Arab society, cases of murder were usually settled by ‘ثار’ (Thār: revenge), ‘قصاص’ (Qisās) and Diyat respectively. As is evident from the order, ‘ثار’ (Thār) was the foremost 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, it wanders about in the wilderness crying out ‘اسقونى اسقونى’ (Isqūnī! Isqūnī: quench my thirst! quench my thirst!). Some of them believed that only that slain person remains alive in his grave whose death had been avenged, and if his murder is not avenged, his soul dies and darkness descends upon his grave. Due to these beliefs, they always preferred ‘ثار’ (Thār) and accepted ‘قصاص’ (Qisās) only when they could not help it, not to speak of Diyat. Ummi Shamlah says:
فياشمل شمر و اطلب القوم بالذى
أصبت ولا تقبل قصاصاً ولا عقلاً
Fa yā shamlu shammir watlubi’l-qawma billadhī
Usibta wa lā taqbal qisāsan wa lā ‘aqlā.
(Therefore, O Shamlah! rise and get ready to avenge the harm inflicted upon you by your enemies and listen! Do not accept Qisās or Diyat at any cost.)
Abbās Ibn Mirdās, while inciting ‘Āmir, a tribesman of the Khudā‘ah tribe to revenge says:
ولا تطمعن مايعلفونك انهم
أتوك على قرباهم بالمثمل
Wa lā tatma‘an mā ya‘lifūnaka innahum
Atawka ‘alā qurbāhumu bi’l-muthammalī
(And don’t even think about the Diyat they are tempting you with, for, in spite 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 Ibn Ziyādah, when he was offered seven Diyats upon the murder of his father by the governor of Madīnah, Sa‘īd Ibn al-‘Ās. He says:
أبعد الذي بالنعف نعف كويكب
رهينة رمس ذي تراب وجندل
A ba‘ad alladhī bi’l-na‘afi na‘afi kuwaykibin
Rahīnati ramsin dhī turābin wa jandalī
(What! after the person who was buried at the foot of Mount Kuwaykab in a grave of mud and stone.)
اذكر بالبقيا على من أصابني
وبقياى اني جاهد غير مؤتل
Udhakkaru bi’l-buqyā ‘alā man asābanī
Wa buqyāya annī jāhidun ghayru mu’tilī
(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.)
فان لم أنل ثأري من اليوم اوغد
بنى عمنا فالدهر ذومتطول
Fa in lam anal tha’rī mina’l-yawmi aw ghadin
Banī ‘amminā fa’l-dahru dhū mutatawwalī
(O you, 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.)
فلايد عنى قومي ليوم كريهة
لئن لم اعجل ضربة أو اعجل
Fa lā yad‘unī qawmī liyawmi karīhatin
la in lam u‘ajjil darbatan aw u‘ajjalī
(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.)
انختم علينا كلكل الحرب مرة
فنحن منيخوها عليكم بكلكل
Anakhtamu ‘alaynā kalkala’l-harbi marratan
Fa nahnu manīkhuhā ‘alaykum bikalkalī
(You have placed the chest of war upon us; so listen! we have also decided that unless we place it upon you, we would not remain at ease.)
يقول رجال ما أصيب لهم أب
ولا من أخ اقبل على المال تعقل
Yaqūlu rijālun mā usiba lahum abun
Wa lā min akhin aqbil ‘ala’l-māli tu‘qalī
(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. Rabī‘ah Ibn ‘Ubayd, a poet of the tribe Banī Nasr says:
أذواب انى لم أهبك ولم أقم
للبيع عند تحضر الاجلاب
A’ dhuwābu Inni lam ahabka wa lam aqum
Li’lbay‘i ‘inda tahadhdhuri’l-ajlābī
(O Dhuwāb! I have not forgiven your murder; nor in the midst of business in the market of Ukāz am I selling your blood (ie, 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 comes across such instances in one’s life. People who have tried to ascertain the nature of Diyat from these utterances can only be regarded as those who are devoid of any 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 actually being received. Hence, if this opinion is accepted, the result, obviously, would be that a society would never benefit from the expediency upon which the law itself is based. On these grounds, this opinion, regrettably, stands rejected.
As far as those 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 damage 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, what then is the correct view point? To answer this question, it is necessary to have a recourse to ancient Arabic traditions for a solution.
We find a lot of instances, in which the subject of Diyat has been discussed in pre-Islamic Arabic poetry. Episodes of homicide and murder were so rampant in the ancient Arab society that the subjects of ‘ثار’ (Thār), ‘قصاص’ (Qisās) and ‘ديت’ (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 words ‘غرامة’ (gharāmah) or ‘مغرم’ (maghram) which literally means ‘penalty’. Just as in English, these words imply the exaction of fine from an offender as a punishment for a crime, the word ‘غرامة’ (gharāmah) denotes this meaning in Arabic. It has been indicated before that the Arab poets used this word in instances when they talked about the nature of Diyat. To quote Zuhayr:
ينجمها قوم لقوم غرامة
ولم يهريقوا بينهم مل محجم
Yunajjimuhā qawmun liqawmin gharāmatan
Wa lam yuharīqu baynahum mil’a mihjamī
(In small lots those camels began to be 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. Ajīr al-Salūlī, a poet of the Umayyid period has said:
يسرك مظلوماً ويرضيك ظالمً
ويكفيك ما حملته عند مغرم
Yasurruka mazlūman wa yurdika zāliman
Wa yakfīka mā hammaltahu ‘inda maghramī
(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 ‘غرامة’ (gharāmah) ie, a fine or penalty imposed on the criminal in lieu of ‘قصاص’ (Qisās) in case of intentional murder and, indeed, in all cases of un-intentional murder.
1. The complete verse in Arabic reads:
وَإِذْ قَالَ مُوسَى لِقَوْمِهِ إِنَّ اللَّهَ يَأْمُرُكُمْ أَنْ تَذْبَحُوا بَقَرَةً قَالُوا أَتَتَّخِذُنَا هُزُوًا قَالَ أَعُوذُ بِاللَّهِ أَنْ أَكُونَ مِنْ الْجَاهِلِينَ (٦٧:٢)
2.Abu’l-Farj Asfahānī, Aghānī, 2nd ed., vol 3, (Beirut: Dāru’l-Kutub al-‘Ilmiyyah), p. 40
3. Dr Jawwād ‘Alī, Al-Mufassal fī Tārīkhi’l-‘Arab Qabla’l-Islām, 2nd ed., vol. 5, (Beirut: Dāru’l-‘Ilm Li’l-Malāyīn, 1986), p. 592
4. Ibid., p. 593
5. Ibid.
6. Ibn Sa‘ad, Al-Tabaqātu’l-Kubrā, vol. 1, (Beirut: Dār Sādir, 1960), p. 89
7. Abu’l-Farj Asfahānī, Aghānī, 2nd ed., vol 10, (Beirut: Dāru’l-Kutub al-‘Ilmiyyah), p. 297
8. Sharh al-Mu‘allaqāt al-Sab‘, Zawzanī, 1st ed., (Lahore: Dāru’l-Nashr al-Kutub al-Islamiyyah), p. 80
9. Ibn Manzūr, Lisānu’l-‘Arab, 1st ed., vol. 6, (Beirut: Dār Sādir, 1400 AH), p. 263
10. Ibn Sa‘ad, Al-Tabaqātu’l-Kubrā, vol. 1, (Beirut: Dār Sādir, 1960), p. 89
11. Ibn Manzūr, Lisānu’l-‘Arab, 1st ed., vol. 11, (Beirut: Dār Sādir, 1400 AH), p. 462
12.Dr Jawwād ‘Alī, Al-Mufassal fī Tārīkhi’l-‘Arab Qabla’l-Islām, 2nd ed., vol. 5, (Beirut: Dāru’l-‘Ilm Li’l-Malāyīn, 1986), p. 593
13. A little deliberation shows that the ratios of Diyats which have been stated in this epistle are the last word as far as justice and fairness are concerned. Our rulers while legislating in this regard should take them into consideration.
14. These words have been taken from another text of the Hadīth Sunan Nasā’ī in which this epistle has been recorded.
15.Ibn ‘Ābidīn, Rasā’il Ibn ‘Abidīn, 1st ed., (Damascus: al-Maktbah al-Hāshimiyyah, 1325 AH), p. 125