Re-examination of Blood-Money Law Prevailing in Muslim Jurisprudential Texts
By V.A.
Mohamad Ashrof, New Age Islam
24
November,2023
There
are wide-ranging jurisprudential derivations prevailing over the amount of
‘Diya’ (Blood-money) of females. There is no consensus of opinion amongst
Hanafi, Maliki, Hanbali and Shaafi related to Diya. The paper argues that the
blood-money of a female fixed as half that of a male was merely based on the
social context of the era, as the economic loss was greater if the breadwinner
of the family was killed. This social condition has changed now. Based on the
Maqasid Shariah approach Mohammad Hashim Kamali (Professor of Islamic law and
jurisprudence at the International Islamic University Malaysia) and Yusuf
al-Qaradawi (former chairman of the International Union of Muslim Scholars),
the paper probes into the reasons why gender inequality over Diya which
prevails in the Muslim world has to be changed. The arguments of Mohammad
Hashim Kamali and Yusuf al-Qaradawi on the concept of Diya are examined in the
paper. This paper further seeks to illustrate specifically the ways in which
traditional Islamic jurists have interpreted and formulated rights based on
cultural definitions of "man" and "woman" and their
influence in Islamic fiqh (Islamic jurisprudence) and also why this has to be
revised based on Islamic theory of justice.
What
is Blood Money?
Blood
money (‘Diya’) is intended as compensation for the unintentional damage caused
to the victim’s family; it is confined to the cases of killing by mistake in
which premeditation of murder has absolutely no room. ‘Diya’ is basically
compensation for the financial harm caused to the family of the victim. And
since the accidental killer is the one who caused the family harm, he or she is
to pay them that compensation even though he or she had not intended to kill
the victim.
The
Qur'an specifies the principle of Qisas (i.e. retaliation) and compensation
(diyah) in cases where one believer kills another believer: It is not for a
believer 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 diyah 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 diyah 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 (Q. 4:92). We
find that the Qur'anic statement is general and does not privilege man with any
special status. As a general rule, blood money is payable by the criminal
himself or his legal heirs in the category of agnates (ʿāqilah).
Equality
of the Sexes:
There
cannot be any ontological difference between males and females as both are
carriers of the spirit from God (Qur'an 32:9, 15:29, 38:72, 21:91).
Umm
Salama, a wife of the Prophet, asks why men are mentioned in the Qur'ān when
women are not. God’s response (Q.33:35) enumerates the virtues expected of both
men and women as if to explain that human perfection is no different between
the sexes. Men are specifically and predominantly addressed mainly because they
are perpetrators of injustices against women. Women need to look no further
than the Qur'an’s counsels of perfection to see that their perfection is no
different from that of males.
According
to the Qur'an if a human is unjust to others, he or she is unjust to himself
because humanity is like one single individual self (Q.17:70). That is also why
if one murders a man it is as if he has murdered the entire humanity (Q.5:32).
Prophet
Muhammad taught: ‘All people are equal as equal as the tooth of a comb. There
is no claim of merit of an Arab over a non-Arab or a white over a black person
or a male over a female. Only God-fearing people merit a preference with God.’
(Bukhari).
“O
people O your Lord is one your ancestor is one O there is no preference to an
Arab over a non-Arab or a non-Arab over an Arab or a red-skinned over a
black-skinned or a black-skinned over a red-skinned except by the level of
piety.” (Narrated by Ahmed 411/5). This oft-quoted hadith is considered a
definitive statement of the ideology of equality espoused in the Qur’an and thus
in Islam. It is an important instruction to humankind to treat fellow human
beings with dignity and respect without discrimination or prejudice based on
any ground. The only distinction that can be made between human beings is a
distinction based on their fear of God which is mentioned in Q.49:13.
The
Qur’an proclaims: “Therein We decreed for them a life for a life an eye for an
eye a nose for a nose an ear for an ear a tooth for a tooth and a wound for a
wound” (Q.5:45).
God -
the Just the Merciful and the Wise - has ordained and enforced the principles
of equality among all people making no distinction between males and females
under the law. As per the verse a man is sentenced to death if he kills a woman
and other wits are treated in the same manner. Since blood money comes as
compensation in the case of killing by mistake, the sex should not determine
the size of the blood money. Some scholars do not accept the usage of this
verse as a justification for equality in punishment and blood money based on
the argument that this story was initially narrated on the Sons of Israel in
the Torah and that it does not relate to Muslims. However, this argument is not
well founded since whatever was ordained on previous generations was ordained
on us unless otherwise indicated in the Qur’an and the Sunnah for or against
it.
Insofar
as a person is killed in a premeditated manner, the family of the person killed
can call for the killing of the guilty individual. However, only the nearest
male relative is allowed to make this request and no other person. Along with
this, there is the principle of equity: a woman for a woman, a slave for a
slave. “O’ you who believe! retaliation is prescribed for you in the matter of
the slain, the free for the free, and the slave for the slave, and the female
for the female” (Q. 2:178). If this equity cannot be produced, then no
retaliation may be exercised.
The
view that says that the blood money of a woman is less than that of a man is
tantamount to saying that her life is less important than that of a man.
Therefore, this view is contradictory to the Islamic jurisprudence by default
and the idea does not have any supporting evidence and even the Ahadith that
were mentioned in support of this argument were verified and identified by a number
of Hadith jurists as weak in authenticity. In Islam, no person has preference
over another except by the criteria of the levels of faith, piety and good
deeds. The Scripture says: “O people! We have created you from a male and a
female and made you into nations and tribes so that you may know one another.
The noblest of you in God’s sight is the most pious amongst you” (Q.49:13).
“Claim not purity unto yourselves He knows best those who guard themselves
against evil” (Q.53:32). “Whoever kills a believer by design shall burn in the
Hellfire forever. He shall incur the wrath of God who will lay His curse on him
and prepare for him a mighty scourge” (Q.4:93). “It is unlawful for a believer
to kill another believer by accident excepted” (Q.4:92). “Do not kill
yourselves God is merciful upon you” (Q.4:29).
There
is not a single verse in the Qur’an that grants men a degree over women in
either mind or religion: ‘If anyone does deeds of righteousness be the male for
female and have faith they will enter Heaven and not the least injustice will
be done to them’ (4:124). While the Qur’an is replete with commandments that
man and woman are equal in God’s eyes it is prudent to reflect on the following
verse: 'The true believers’ men and women are friends to each other. They
enjoin what is just and forbid what is evil' (9:71).
Patriarchal
Interpretation:
Throughout
the world, women still suffer discrimination and oppression for no reason other
than their gender. This is because of patriarchy, a social system in which positions
of dominance and privilege are primarily held by men. We have to realize that
the condition of women in the Muslim world is not much different.
When a
nation deprives women, who make up at least 50% of the population of equal
opportunity to reach their full potential that nation’s social and economic
development is curtailed.
The
Qur’anic verses are strongly critical of women’s low status in pre-Islamic
Arabia and bring substantial reforms in the ways in which women were viewed and
treated in pre-Islamic Arabia. For instance, the practice of female infanticide
is condemned; aspects of marriage divorce and inheritance practices are
reformed to give women a greater say and autonomy (Q.16:58–9). The Qur’an
guarantees women their right to work and earn. Medieval jurists agreed that
Muslim women had an independent financial standing. They noted that the
marriage contract was not of service but of companionship. They argued that it
was the husband's duty to obtain prepared food for his wife if she did not
volunteer to cook. Furthermore, the Muslim woman kept her own name after
marriage and was not required to do housework. The Qur’an itself defines
marital relations as one of tranquillity, affection and mercy (Q.30:21). It
encourages Muslim couples to live together in kindness or separate charitably
(Q.2:187, 2:229).
Besides
the spiritual equality of both man and woman, the Qur'an also holds both
equally responsible for the transgression of the laws of the Islamic
jurisprudence i.e.; the boundaries set by God (Q.5:41, 24:2). As equal
independent creations of God the ultimate role of men and women is to serve as
vicegerents on earth to worship God and follow His commands so that we may
return to Him. Both men and women share this responsibility which constitutes
our basic role in life. The Qur’an outlines the attributes believing men and
women should try to live by but in no specific way are we told in what capacity
each individual man and woman should practice these: “Say: Behold my prayer and
all my acts of worship and my living and my dying are for God alone” (Q.
6:163). This verse which was addressed to the Prophet but serves as an
inspiration to all reveals that our vicegerency is not only spiritual but must
be consolidated with actual service. The Qur’an does not distinguish between a
man and a woman's vicegerency (Q.2:30, 2:38). Each gender has the ability to
contribute to successive generations as implied by the term Caliph in the
Qur’an (vicegerent). But that doesn’t limit a woman's vicegerency solely to
bear or rear children. Her potential for financial earning is also recognized
by the Divine Writ (Q.4:32).
Fiqh
Reading and Its Inadequacy:
In the
case of blood money, there is not any single hadith which discriminates against
genders in the entire corpus of six authentic collections of hadith literature
(al-Sihah al-Sittah). Despite this bare fact, see how a conservative scholar
defends gender discrimination in blood-money. Abdul-Rahman Al-Sheha, a Saudi
conservative scholar, claims thus: Islam stipulates that the blood money to be
paid for a woman's death is half of that which is paid for a man when she is
killed by accident, rather than a capital crime.1
Al-Sheha
deliberately ignores the fact that there is no difference had the victim been a
minor and he simply assumes that such discrimination is the absolute verdict of
Islam. Based on weak evidence he argues that being breadwinners it is
legitimate to allow a double share of the female to the relatives of the male
victim ignoring the cases where female partners are breadwinners.
According
to the contemporary concept of the fiqh, despite declarations of the equality
of the sexes before God women are considered inferior to men and have fewer
rights and greater responsibilities. Although it is mistakenly argued Islam has
played a strong role in restricting the freedom of women in Muslim societies
these restrictions are not inherent in the religion of Islam but rather stem
from cultural interpretations. Pre-Islamic tribal law and the cultural
constructs internalized by the early Muslim communities discriminated against
women and influenced the Sunnah of the early Muslims and the exercise of
‘Ijtihad’.
Women’s
status in Islam is the product of biased interpretation and selective
acknowledgement of textual sources from which rights have been derived. Unjust
laws discriminatory constitutions and biased mentalities that do not recognize
women as equal citizens violate women’s rights. There is no divine sanctity for
such a detailed approach.
Take
the recent example of the prohibition of driving prevailed in Saudi Arabia.
Until 2018, women could not drive cars in Saudi Arabia. A ban on female drivers
was lifted by the Saudi government in 2018, opening the door to driving a car.
If an authoritative ruling from Saudi Arabia states that women cannot drive
because it would increase possible, contact to freely mix with men which can
lead to sins this logic must be judged against Islam and history. It is a fact
that the Qur’an emphasizes modesty for both men and women in order so that we
conduct ourselves respectfully (Q.24:30-31). It is also a fact that men and
women in the time of the Prophet did interact (Q.60:12) so the justification of
this law on Islam is bogus. It is unduly harsh and anti-Islamic.
Orthodox
and conservative Muslim scholars claim that the texts by the great theologians
and jurists of centuries past have perfected the understanding of Islam and the
doors of ‘Ijtihad’ should therefore remain closed. As Sachedina notes: ‘It is
remarkable that even when women transmitters of hadith were admitted in the
’ilm al-rijal’ (“Science dealing with the scrutiny of the reports”) and even
when their narratives were recognized as valid documentation for deducing
various rulings they were not participants in the intellectual process that
produced the prejudicial rulings encroaching upon the personal status of women.
More importantly, the revelatory text regardless of its being extracted from
the Qur’an or the Sunnah was casuistically extrapolated in order to disprove a
woman’s intellectual and emotional capacities to formulate independent
decisions that would have been sensitive and more accurate in estimating her
radically different life experience.’ 2 Islamic scholar Leila Ahmed explains
that "had the ethical voice of Islam been heard I here suggest it would
have significantly tempered the extreme androcentric bias of the law and we
might today have a far more humane and egalitarian law regarding women." 3
In the
modern era, Blood Money (diyah) plays a role in the legal system of Iran
Pakistan Saudi Arabia and the United Arab Emirates. In Iran and Pakistan, the
diyah is the same for Muslims and non-Muslims. 4 However, this is not the case
in Saudi Arabia where there is faith-based discrimination still prevailing.
It is
prescribed by the traffic regulations of Saudi Arabia that someone who knocks
down and kills a person in a traffic accident shall be liable to pay diyah to
his legal heirs and in addition be liable to imprisonment. The blood money
payable for a woman’s accidental death is half as much as that of a male. 5
Arguments
of Kamali and Qaradawi in Support of Gender Equality in Blood Money:
Mohammad
Hashim Kamali is the Founding Chairman and CEO of the International Institute
of Advanced Islamic Studies, Kuala Lumpur, Malaysia. He served as the Dean of
the International Institute of Islamic Thought and Civilisation (ISTAC,
2004–2006).
Kamali
argues:
‘Muslims
should also find their own realistic solutions and should not allow the real
challenges to get entangled in the heated exchanges of secularist, religious
and ultra-conservative debates. To correct the imbalances of history naturally
takes time and reflection on the newly emerging issues. Gender equality and
justice are undoubtedly long-term engagements. Windows of opportunity present
themselves from time to time and prudent government leaders should be alert to
utilizing them for society’s benefit. Juridical issues of concern to Shari‘ah
should also be addressed, as far as possible, through imaginative ijtihad that
is informed by the broader guidelines of the Qur’an and Sunnah on human
dignity, equality and justice. We say this because scholastic Islamic
jurisprudence on women’s rights has been influenced by medieval social values
that also found their way into Qur’an hermeneutics and juristic interpretations
of the schools of Islamic law. To say, for example, that the diyah (blood money
for manslaughter) for a woman is half that of a man simply overturns the
broader Qur’anic principles on the sanctity of life, on just retaliation
(qisas), and its unqualified and gender-blind proclamation on human dignity.’ 6
The
Qur’an draws no distinction between one life and another even if one is that of
an infant and the other an adult in his prime a great scholar and a commoner a man
and a woman — all are equally subject to the laws of qiṣaṣ and diyah. The diyah provision
appears in a long verse of the Qur’an in reference to an unintentional killing
that shall be compensated by the freeing of a slave and payment of blood money
to the family of the deceased. If the killer is unable to pay his expiation
shall be fasting for two consecutive months (Q.4:92). There is no distinction
anywhere in this passage which is the principal verse on diyah between man or
woman Muslim or non-Muslim.
Let me
quote Sheikh Yusuf Al-Qaradawi (1926-2022), the eminent Islamic scholar, in
this context: ‘There is neither a single well-authenticated statement by the
Prophet Muhammad nor any consensus of religious authorities (‘Ijma’) to
establish that the blood money paid for the killing of a woman is half the sum
paid for the killing of a man. There are two Ahadith which are not perfectly
authenticated that address the question. The best one in terms of
authentication is that narrated by Al-Nisai and Al-Daraqatni which still
suffers a time gap in the chain of transmitters up to the Prophet as was
pointed out by. Statements related to the Companions suffer in the same manner.
What remains then is the only well-authenticated tradition on the subject
"For a soul a hundred camels."
“The
general agreement of authorities that the value of the blood money paid for the
killing of a woman is half that for the killing of a man falls short of a
consensus. Ibn `UIayya and Al-Asam, two scholars from the high order of jurisprudence
(fuquh’ as-salaf) make the value of the blood money the same for both men and
women. This opinion is in agreement with the generality of reference to
"believer" and `soul" in the Qur'an and the Hadith. If we opt
for this opinion today, we are not to blame since in addition to the previous
reason the legal opinion (‘fatwa’) could change with age and environment but
the new legal opinion is neither in conflict with the relevant textual
statements nor with the general objectives of Islamic Teachings. Under the
subtitle, "Blood Money the Same for Men and Women " Sheikh Shaltut
writes: ‘Woman's humanity stemming from the same origin as that of the man her
blood is the same as his he being from her and she from him and equal
retaliation in kind being the rule common to both cases of homicide and hell
and damnation being the other worldly punishment for the killing of either man
or woman so the rule of the verse applies to the accidental homicide of either
a man or a woman’”.
“It is
true that the scholars have differed over the amount of blood money whether it
is the same or double in the man's case. Al-Razi tells us in his ‘Tafsr
al-Kabir’ that the majority of jurisprudents double the sum in cases of male
homicide. He adds that Al-Asam and Ibn `Ulayya make the sum paid the same. The
majority cite the ruling of the Companions `Ali `Umar and Ibn Mas'ud ruling on
this matter as well as the rules of inheritance and legal testimony in which
the woman's inheritance and testimony equals only half those of the man. Al-Asam
however cites the verse: ‘and whosoever kills a believer by mistake’ (4:92).
All agree this verse addresses both men and women; therefore, the ruling on the
sum paid is the same. They cite as evidence for this the following hadith:
Mu`adh ibn Jabal reported that God’s Messenger said: “The woman’s blood money
is half the man’s.” Researchers of the Qur’an and the authentic Sunnah would
conclude rather naturally that women’s blood money in Islamic Shari’ah is
equated to that of men and that there is no solid evidence that proves
otherwise.
Syed
Qutb wrote in his ‘Fi Zilal Al-Qur’an’ (In the Shades of the Qur’an): “The
first thing that was ascribed by the Islamic Shari’ah in the capital punishment
is equality of blood and in all other punishments. This great principle of
Islam is the first true and universal declaration of human rights in which all
people are equal before the law.” 7
Reform
in Diyah Law is Urgent:
The
Qur’an describes the mandate of monotheist prophets as inspiring humankind to
rise up and establish ‘Qist’ the ultimate stage of social freedom, justice and
unity. The Qur’an says: " We sent Our messengers with clear signs, the
Scripture and the Balance, so that people could uphold justice" (Q.57:25).
The
implementation and enforcement of laws based squarely upon the notion of gender
equality is one of the principal means by which the widespread discrimination
suffered by women in the name of Islam could be eliminated. The absence of such
laws in the Muslim world is a damning indictment of the failure of many states
to live up to the true ideals of Islam.
If
Islam is to be dragged into an interpretation which is precisely in conflict
with the welfare of mankind or even oppresses the human race, then that kind of
Islam will have become a fossil religion that is no longer useful to humanity.
Because Islamic law should be an embodiment of Divine Justice (Q.5:8, 4:135).
Islamic
jurisprudence which represents the moral and ethical values of Islam from which
Islamic law can be distilled is aimed at establishing a just society. Diya is
quantified at a standard amount by Islamic jurisprudence that does not vary by
reference to the offender’s personality and status but does vary by reference
to the type of crime and injury inflicted. That is why the diyah of a child, an
adult, the rich or the poor are all the same and so is the diyah of man and
woman or Muslim and non-Muslim according to contemporary ijtihād.
References:
1.
Abdul-Rahman Al-Sheha, Women in Islam & Refutation of some Common
Misconceptions, Translated by: Abu Salman Deya ud-Deen Eberle, Islam Land:
Khamis Mushait, Saudi Arabia: Islamic Education Center, 2000, p.113
2.
Abdulaziz Sachedina, Woman Half the Man? Crisis in Male Epistemology in Islamic
Jurisprudence. In ‘Perspectives on Islamic Law Justice and Society’ (Ed. R. S.
Khare) Rowman & Little World: New York, 1999, p.149
3.
Laila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate,
New Haven: Yale University Press, 1992, p.88
4.
Richard J. Terrill, World Criminal Justice Systems: A Comparative Survey,
NY: Routledge, 2012, p.559
5. Aharon Layish, “Saudi Arabia Legal Reform as
a Mechanism to Moderate Wahhabi Doctrine,” Journal of the American Oriental
Society 1987, p.282
6.
Mohammad Hashim Kamali, Shariah Law: An Introduction, Oxford: One World, 2011,
p.275
7.
Sheikh Yusuf Al-Qaradawi, ‘The Status of Women in Islam’
(http://www.jannah.org/sisters/qaradawistatus.html)
(Paper
presented at the International Colloquium on Reform the Methodology of Islah
held on 2023 November 18, 19 at Kozhicode, Powered by: Academy for Islamic
Studies and Research under ISM Kerala, CIG Building, Kozhicode).
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