By Abu Amina Elias
In the name of Allah, the Gracious, the Merciful
The controversy surrounding recent attempts by some Muslim states to implement Islamic blood money laws are a good example of the need for well-reasoned legal reforms. The modern social context is very different from when these laws were first codified, thus requiring us apply Islamic principles and values in a new setting.
In classical Islamic law, the crime of murder was punished by capital punishment (qiṣāṣ) or payment of blood money (diyyah).
Abu Huraira reported: The Messenger of Allah, peace and blessings be upon him, said:
مَنْ قُتِلَ لَهُ قَتِيلٌ فَهُوَ بِخَيْرِ النَّظَرَيْنِ إِمَّا أَنْ يُعْطَى يَعْنِي الدِّيَةَ وَإِمَّا أَنْ يُقَادَ أَهْلُ الْقَتِيلِ
Whoever has a relative killed has two legal choices: either he is paid the blood money or he takes the life of the killer.
Source: Ṣaḥīḥ al-Bukhārī 6486, Grade: Muttafaqun Alayhi
The relatives of the victim could request the judge to apply capital punishment, order monetary compensation, or issue a full pardon. The Prophet always recommended forgiveness in every case, but the legal punishments exist to deter potential criminals before they act. The laws were also meant to put an end to the violent cycle of tribal revenge that plagued the Arabs at the time.
The modern controversy erupted due to the desire to implement historical legal rulings that unequally apply the law between Muslims and non-Muslims. Some classical jurists were of the opinion that the blood money for non-Muslims was less than it was for Muslims. However, this opinion was not universal.
The standard opinion in the Hanafi school is that the payment of blood money is equal regardless of the victim’s religion. This opinion is based upon the fact that the Quran makes no distinction between Muslims and non-Muslims when discussing murder, as well as the practice of the early Muslims.
Az-Zuhri, may Allah have mercy on him, said:
دِيَةُ الْيَهُودِيِّ وَالنَّصْرَانِيِّ وَالْمَجُوسِيِّ وَكُلِّ ذَمِّيٍّ مِثْلُ دِيَةِ الْمُسْلِمِ وَكَذَلِكَ كَانَتْ عَلَى عَهْدِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَأَبِي بَكْرٍ وَعُمَرَ وَعُثْمَانَ
The blood money for a Jew, a Christian, a Magian, and every non-Muslim citizen is the same as a Muslim. This was the case in the time of the Prophet, Abu Bakr, Umar, and Uthman.
Source: Muṣannaf Abd al-Razzāq 17879
Abu Hanifa, may Allah have mercy on him, said:
دِيَةُ الْيَهُودِيِّ وَالنَّصْرَانِيِّ وَكُلِّ ذَمِّيٍّ مِثْلُ دِيَةِ الْمُسْلِمِ وَهُوَ قَوْلِي
The blood money for a Jew, a Christian, and every non-Muslim citizen is the same as a Muslim. That is my opinion.
Source: Muṣannaf Abd al-Razzāq 17881
Ibn Rushd reported:
وَالْقَوْلُ الثَّالِثُ أَنَّ دِيَتَهُمْ مِثْلُ دِيَةِ الْمُسْلِمِينَ وَبِهِ قَالَ أَبُو حَنِيفَةَ وَالثَّوْرِيُّ وَجَمَاعَةٌ وَهُوَ مَرْوِيٌّ عَنِ ابْنِ مَسْعُودٍ وَقَدْ رُوِيَ عَنْ عُمَرَ وَعُثْمَانَ وَقَالَ بِهِ جَمَاعَةٌ مِنَ التَّابِعِينَ
A third opinion states that the blood money for non-Muslims is the same as Muslims. It was said by Abu Hanifa, Ath-Thawri, and a group of scholars. It was narrated from Ibn Mas’ud, Umar, and Uthman, and it was said by a group of the companion’s students.
Source: Bidāyat al-Mujtahid 1/731
And according to the Kuwaiti Encyclopedia of Islam:
وَالصَّحِيحُ عِنْدَ الْحَنَفِيَّةِ أَنَّ الذِّمِّيَّ كِتَابِيًّا كَانَ أَوْ غَيْرَهُ وَالْمُسْتَأْمَنَ وَالْمُسْلِمَ فِي الدِّيَةِ سَوَاءٌ وَهَذَا قَوْلُ إِبْرَاهِيمَ النَّخَعِيِّ وَالشَّعْبِيِّ وَرُوِيَ ذَلِكَ عَنْ عُمَرَ وَعُثْمَانَ وَابْنِ مَسْعُودٍ وَمُعَاوِيَةَ رَضِيَ اللَّهُ عَنْهُمْ فَلَا يَخْتَلِفُ قَدْرُ الدِّيَةِ بِالْإِسْلَامِ وَالْكُفْرِ عِنْدَ الْحَنَفِيَّةِ لِتَكَافُؤِ الدِّمَاءِ وَذَلِكَ لِقَوْلِهِ تَعَالَى وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ أَطْلَقَ سُبْحَانَهُ وَتَعَالَى الْقَوْلَ بِالدِّيَةِ فِي جَمِيعِ أَنْوَاعِ الْقَتْلِ مِنْ غَيْرِ فَصْلٍ فَدَلَّ عَلَى أَنَّ الْوَاجِبَ فِي الْكُلِّ وَاحِدٌ
It is correct according to the Hanafi school that the non-Muslim citizen, whether of a scriptural religion or otherwise, and those protected by a treaty and the Muslim are the same regarding blood money. This is the opinion of Ibrahim An-Nakha’i, Ash-Sha’bi, and it has been narrated from Umar, Uthman, Ibn Mas’ud, and Mu’awiyah, may Allah be pleased with them. There is no disagreement among the Hanafi scholars on the amount of the blood money, whether the victim is in Islam or unbelief, to be equivalent for murder. That is based upon the saying of Allah the Exalted: If he was from a people with whom you have a treaty, then a compensation payment presented to his family and the freeing of a believing slave. (4:92) Allah generalized the statement of blood money in all types of killing without distinction, demonstrating that it is an obligation for each one.
Source: al-Mawsū’at al-Fiqhīyah 22/57
Another source of controversy is the distinction classical jurists made between blood money for men and women. Like the laws of inheritance, a female victim’s relatives were awarded half of what was given to a male victim’s relatives.
The reason for this distinction is not because women are “inferior” or their lives are less important. When these laws were codified, the economy was largely based upon the trade and agriculture of extended families in which mostly men participated. The loss of a male family member placed a greater financial burden on the family than the loss of a female member. Hence, the classical blood money and inheritance laws took this context into account.
Yet in our times the economies of most Muslim states are largely based upon industry, technology, and knowledge. Traditional family structures have been reconfigured by the new economic realities, making the earlier rationale no longer applicable and prompting Muslim authorities to call for the equalization of blood money between men and women.
In this case, we can properly apply the legal principle of equity (istihsan). This principle states that it is permissible for jurists to adopt a ruling that differs from earlier precedent if the application of such precedent would lead to negative results. Istihsan literally means seeking excellence (ihsan), as it is a value that Allah has commanded us to seek.
إِنَّ اللَّهَ يَأْمُرُ بِالْعَدْلِ وَالْإِحْسَانِ
Verily, Allah orders justice and excellence (ihsan).
Surat an-Nahl 16:90
The competent jurist, then, must use his reason in order to make sure the law is applied fairly, according to its purposes (maqasid), and in the best manner. If two values or two texts contradict each other, then the jurist has to follow the stronger one in his case. This understanding is so important that Imam Malik considered it nine-tenths of all knowledge.
Malik ibn Anas, may Allah be pleased with him, said:
تِسْعَةُ أَعْشَارِ الْعِلْمِ الِاسْتِحْسَانُ
Equity (istihsan) is nine tenths of knowledge.
Al-Baji commented on this statement, saying:
مَعْنَى الِاسْتِحْسَانِ الَّذِي ذَهَبَ إلَيْهِ أَصْحَابُ مَالِكٍ هُوَ الْقَوْلُ بِأَقْوَى الدَّلِيلَيْنِ
Equity as applied by the Maliki scholars means to seek the opinion that is based on the stronger of two indications in the text.
Source: al-Baḥr al-Muḥīṭ 2/97
In the case of blood money, we have two indications in the Islamic tradition. There is ample precedent for the blood money of women to be half of men, but Allah has also commanded us to seek justice and excellence. Therefore, if the application of the historical law would cause injustice and hardship, then we should apply independent reasoning (ijtihad) to seek the better option. The law can change and, indeed, in some cases it must change. We would not be denying anything that Allah revealed, but rather we would be fulfilling Allah’s command.
Ibn Al-Qayyim writes:
فَإِنَّ الْفَتْوَى تَتَغَيَّرُ بِتَغَيُّرِ الزَّمَانِ وَالْمَكَانِ وَالْعَوَائِدِ وَالْأَحْوَالِ
Indeed, judgment (fatwa) changes with the change of time, place, custom, and circumstance.
Source: I’lām al-Muwaqqi’īn 4/157
The same principle applies to the legal procedures that accompany any law. If the law is applied in a way that produces unjust results, then the procedures must be reformed.
When some Muslim states applied the laws of blood money, it was not long until some people figured out how to undercut the purpose of the law through their status, intimidation, loopholes, or bribery:
This law has been abused. This abuse was to the degree that influential and rich people would get away with murder, literally.
The law should never be applied arbitrarily or in a way that favors the rich over the poor. We have to remember that the goal of Islamic law is not to apply interpretations and precedents without regard to their consequences. Rather, the ultimate purpose is to provide justice and safety to all human beings.
Ibn Al-Qayyim writes:
قَدْ بَيَّنَ سُبْحَانَهُ بِمَا شَرَعَهُ مِنْ الطُّرُقِ أَنَّ مَقْصُودَهُ إقَامَةُ الْعَدْلِ بَيْنَ عِبَادِهِ وَقِيَامُ النَّاسِ بِالْقِسْطِ فَأَيُّ طَرِيقٍ اُسْتُخْرِجَ بِهَا الْعَدْلُ وَالْقِسْطُ فَهِيَ مِنْ الدِّينِ وَلَيْسَتْ مُخَالِفَةً لَهُ
Allah the Exalted has made clear in his law that the objective is the establishment of justice between his servants and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.
Source: al-Ṭuruq al-Ḥikmīya 1/13
Any modification to Islamic laws in order to achieve justice is correct and authentic, even if it differs from previous precedents or texts. When classical Islamic laws are being abused and misused to the detriment of their original purposes, then it is our duty to call for reform according to the values revealed by Allah and the principles derived by the scholars. To remain silent or indifferent in the face of such abuse is a tremendous disservice to Islam and humanity at large.
Success comes from Allah, and Allah knows best.