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From: AbdulraHman Lomax
as-salamu 'alaykum.
"sol_ar"
No, but her earning capacity might be.
First of all, it should be understood clearly that we are talking
about accidental killing, where the person who killed did not intend
to do so.
Secondly, it is offensive to translate the term used in the Qur'an and
the books of fiqh as "beating." The word is a word which implies a
single blow, with some implication that the blow is light, not a
repeated series of intense blows as is implied by "beating."
A "slap" is darb. A "beating" looks more like an intention to
seriously harm, and this we might no longer be talking about an
"accidental" killing. But if someone dies from a slap -- and it can
happen -- most of us would consider it an accident.
It would be very difficult to prosecute someone for murder in the
United States if the victimm died from a single slap. But if the
victim were covered with bruises, i.e., had been beated, a murder
prosecution would be likely.
Where the killing is accidental, it is recommended that the family
accept diya, compensation.
Consider the matter in Western common law. If one kills someone
through negligence, but without intention, criminal prosecution is
rare unless the negligence is extreme. But civil prosecution is
common, resulting in a payment to the estate of the deceased. How much
is this payment?
It may consist of three parts: actual financial damages, damages for
emotional stress and loss of consortium and the like, and punitive
damages. Setting aside the punitive damage part (for diya is not about
punishment), and damages for emotional stress, which are a fairly
modern concept, the actual financial damages will typically be based
on the earning capacity of the deceased. In a society where men earn
substantially more than women, and especially where men support women,
one expects to see the average damage award to be higher for the loss
of a man than for the loss of a woman. That is still the reality in
the United States, for sure.
Islamic law is basically similar, just stated a little more simply. It
should be remember that the context for the order of diya was a tribal
situation where blood feuds were common. To establish some kind of
fixed compensation was crucial, lest there be disagreement about
whether or not compensation was adequate. The compensation was not
different for a rich man or a poor man, a man of position and honor
and a man of no means. This is where Islamic law on this point differs
>from western common law, or, more accurately, the concern of Islamic
law in the matter of qisas (retaliation) and diya is not so much a
remedying of damages but the preservation of the public good by the
avoidance of blood feuds.
The old principle in English common law was "let the damage lie where
it is." If someone died in an accident, it was not presumed, as it is
now, that someone is at fault. However, Islamic law does provide for
diya even when the killing was truly an honest mistake without any
forseeable negligence. But the rules for honest mistake, culpable
mistake (where, for example, one intended to injure another but not to
kill them, like the slap I mentioned above), and intentional killing.
With intentional killing, retaliation is the right of the family, and
it is also the right wherever it is possible to reproduce the original
injury without exceeding it. Thus the famous phrase "an eye for an eye
and a tooth for a tooth," since one can reproduce injuries like the
loss of any eye or a tooth. But the general recommendation is to
accept diya, in an amount acceptable to the family.
If the injury was a killing, retaliation means that the offender is
killed. To emphasize the point, retaliation is not allowed if the
killing was not intentional. To put this in modern terms, felony
murder is not a capital offense. And the killing must not be done
without the permission of the khalif or ruler and is done under public
authority, or, more accurately, it is an offense to exact retaliation
without public authority.
Indemnity for men from an intentional killing was set by the Shafi'i
scholars at 100 camels of a certain quality, and they stated an
equivalent in gold, 5,646.6 grams, which is worth today about $59,600
at $300 per ounce. This seems to me to be relatively small compared to
the loss of income involved for a breadwinner. This diya is due
immediately and it is due from the offender himself.
Where the killing was a mistake but was connected with a deliberate
injury (the killer intended to harm but not to kill, and the death was
not foreseeable), the diya is the same as for intentional injury, but
payment may be deferred to three years, and it is to be paid by the
family of the killer, by any member of that family with the means. If
it is not paid within three years, it is paid from public funds.
And if the killing was an honest mistake, it is as with a culpable
mistake, but the diya is reduced by reducing the necessary quality of
the 100 camels, the Shafi'i equivalent in gold being 4,235.0 grams or
about $45,000 as calculated above.
Certain factors are applied to reduce the indemnity. Remember that
this is the minimum Islamic law; local jurisdictions may establish
other rules according to the public interest, at least according to
the schools which recognise this right and responsibility of the
rulers.
Indemnity for the death or injury of a woman is half that paid for a
man.
The indemnity paid for a Jew or Christian is one-third the indemnity
paid for a Muslim. The indemnity for a Zoroastrian is one-fifteenth of
that of a Muslim. I would guess that there is no indemnity for a
polytheist.
Where a miscarriage results from an injury to a pregnant woman, the
indemnity is one-tenth of that payable for killing the mother. (As an
aside, the indemnity for this was stated as "a slave" worth this
amount, i.e. roughly $2500.)
Once again, it seems clear to me that this system was set up to
provide for a clear and simple system substituting for retaliation.
But for deliberate injury, retaliation *against the offender only*
remained permissible. The effect of all this was to confine injury so
that it did not spread through feuding. Had there been a system such
as we now have, with compensation paid according to the "worth" of the
individual, there would have been endless arguments about how much the
victim was worth, and it would not have worked.
There are other details which I have not mentioned; for example, the
indemnity for the loss of a body part was the full indemnity if one
only has one of these body parts, and it was divided according to the
number of body parts if it is one where there is more than one of them
in a healthy body. So the loss of a finger produced a one-tenth
indemnity.
Now, it is an offense against the entire public for a person to
deliberately injure another. For this reason I suspect that *in
addition* to the diya, there would be public action against an
offender, what we now call a criminal action. The diya was a way of
establishing some level of private justice sufficient to reduce the
level of feuding, but it did not necessarily substitute for the right
of the ruler to establish and maintain order through discretionary
law.
Now, do these values apply today? I would suggest that we can
understand these values as the sunna of the early Muslims, which is
valuable to us as a guide, and we can accept these amounts as
defaults, rebuttable presumptions, as it were. But we may also allow
recovery of actual damages where these damages exceed the minimums of
diya.
But to make such a decision would really require one thoroughly
knowledgeable in the shari'a proofs behind the rules I have stated, to
know how best to apply the sunna in our day.
What is offensive about the critics of Islam on the basis of diya is
that the system of diya was clearly designed to protect a society
which was quite different from today's society, a society in which the
strongest social entity was the tribe. If diya had been set higher,
poor tribes might not have been able to pay it; but poor tribes could
still fight in the desert!
Yes, the diya for a woman is half that for a man. But if a woman is
murdered, the family of the woman has the right to kill -- or have
killed -- the murderer, even if he is man. So the life of a woman is
not worth half the life of a man; it is equivalent (since it is
forbidden to retaliate with an injury which is more than the original
injury). The "half" only applies to a voluntary amount accepted by the
family in lieu of retaliation, at their choice, and, again, the
concern there is public welfare, not primarily some "value" to the
person's life.
AbdulraHman Lomax
Subject: Re: Women's liberation through Islam
Date: 06 November 1998 10:56
"Besides the beating, which is covered in the legal books as a possible cause
of accidental killing, why is the blood-money for a woman half of that for a
man? Is her life half the value of his?"
marjan@vom.com
P.O. Box 690
El Verano, CA 95433
USA
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