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From: AbdulraHman Lomax
Subject: Re: Women's liberation through Islam
Date: 06 November 1998 10:56

as-salamu 'alaykum.

"sol_ar" wrote:
"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?"

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
marjan@vom.com
P.O. Box 690
El Verano, CA 95433
USA

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