07 Jul How does “Bloody Money” work?
How does “Bloody Money” work?
I have a court question. How does blood money work and why are some people worth less (in gold, so to speak) than others? Why are men worth more, for example?
The variables in values changes from time-to-time, from place-to-place, and from case-to-case. While that may sound like some weird rhyme or terrible 80’s rap impression, the variance from system to system is important to keep in mind, as again, Islamic Law is a Common Law structure and like all Common Law structures there are differences between regions/nations that employ this legal structure, as well as the dizzying differences in how to employ and/or calculate this between the different Madahab (Schools of Law).
To illustrate how differences in Common Law structures translates practically, let’s take an example between American and English Common Law. So, in England, where the tabloids are a lot more important, celebrities are very concerned with what gets published in the papers, but the bar to sue someone for libel or slander is much lower in Britain than in America, so celebrities are able to “fight back” far more aggressively than in America, because what the courts have defined as constituting “libel” or “slander” is much more difficult to establish in America than in England. Both enshrine “Freedom of Speech” (America formally through the Constitution, while England does not have a single Constitution [multiple sources, etc, it’s different]), both have Common Law structures, both share a (fairly) common history, and yet, differences emerge.
The point of that example is that just because we have the “Umbrella” of Shariah Law (or any court system for that matter) does not mean we have a simplistic, mechanical process to establish who is worth what, all the time, no matter what.
Now, “Blood money” is known in Shariah as “Diya” and is a penalty against those who have killed someone, whether directly (murder) or indirectly (manslaughter, etc). Where The Qur’an addresses accidental death in 4:92 and murder is found in 2:178, but rather than go down into further detail on this particular issue, as there are various issues that must be considered, as Qisas (retribution) is another option by the victim, but what is interesting about Diya is that it actually provides an insight into something people seem to forget.
In the Old Testament we get the phrase “an eye for an eye…” which actually was different to the code of Hammurabi and the Roman code (lex talionis) which have been associated with it, Jewish scholars argue that rather than providing simple compensatory justice (like Hammurabi or lex talionis) the injunction in the Old Testament was a process designed to limit the punishments and compensations which went above and beyond what was equitable. This is an important distinction, as we will see later.
In the New Testament, particularly in Mathew, the response by Jesus is the famous, “turn the other cheek” argument which is considered to be morally superior. Gandhi is routinely quoted for saying “an eye-for-eye makes the world go blind,” with similar sentiments found throughout the world. However, holding onto either principle, without applying discretion, is the issue, as pacifism is an untenable exercise when one has no audience to appeal to and if one’s oppressor has no conscious, while to strictly apply retributive-style justice can simply worsen the wounds of a community where life is lost.
Therefore, when we look at The Qur’an, we see a rather different approach, one that consistently offers the Muslim the ultimate tool: flexibility, but also, the much more difficult responsibility: discretion.
In 5:45, The Qur’an says the following:
And We ordained for them in that [Torah]: A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a [similar] retribution for wounds; but he who shall forgo it out of charity will atone thereby for some of his past sins. And they who do not judge in accordance with what God has revealed – they, they are the evildoers!
While this is not the only place where this issue is mentioned, it underlines that either option, to demand retribution or to forgo it, either one is a right, and it is upon the individual to be able to establish what is equitable, this is our test as those who claim to believe, to illustrate that in our actions. While it may not be wise (or possible) to forgive a person who kills children, it may be better to forgive someone who accidently hurt you, again, these are just random examples, but again, if we hold onto either rule uniformly, we bring harm to our society.
However, this is not the only place where The Qur’an addresses this issue:
(178) O you who have attained to faith! Just retribution is ordained for you in cases of killing: the free for the free, and the slave for the slave, and the woman for the woman.(**) And if something [of his guilt] is remitted to a guilty person by his brother, this [remission] shall be adhered to with fairness, and restitution to his fellow-man shall be made in a goodly manner. This is an alleviation from your Sustainer, and an act of His grace. And for him who, none the less, wilfully transgresses the bounds of what is right, there is grievous suffering in store:
(179) for, in [the law of] just retribution, O you who are endowed with insight, there is life for you, so that you might remain conscious of God!
[2:178-9] Muhammad Asad
Now, as you can see in the part I bolded and italicized we see that to forgive and forgo is important, but again, we are to use our discretion, and to be directed towards fairness and justice as our society’s ability to apply justice is a test of our values. Those who do not do this will be punished, according to The Qur’an, which should ensure that we are aware of our choices and consider why we are making them. The 179th ayah underlines that this is not a method for revenge, rather, it is a safe-guard for the society.
Before I continue, you will notice I put a (**) after the first part, and that is to make sure that no one thinks that only slaves are worth slaves, or women worth women, etc. This is an elliptical method of linguistics that is commonly used in The Qur’an, which is to be understood that “if a man commits a crime, he will be punished, if a woman commits a crime, she will be punished,” which is directed to establishing that justice overcomes titles, status, or any other social construction we put forth, in short, it is establishing not only “equal protection under the law,” but more importantly, “equal answerability to the law.”
Now, to the particulars of Diya (blood money), there is not going to be a “Shariah says men = $1,000” because it matters at what time period, in which State, and with which legal understanding, and of course, with differing considerations, which means that not only Shariah, but any legal system, is going to have to monetize the worth of a person, injury, or claim. Again, it is not just Shariah that does this, people famously sue corporations for damages and the plaintiffs, defendants and courts (via judges and/or juries) must establish how to compensate the parties as a result of these damages.
In historical Shariah men generally were worth more than women, but not by virtue of their gender, but of their relative “worth” to a family, i.e. their ability to earn income. It would be a mistake to make this about gender, this was the attempt of the court to give the wife of the slain the equitable amount that her husband was worth, and while putting a price on an individual is something we find horrific and inhumane, it is still required by society, regardless of the legal system utilized. Furthermore, even if a man was worth more than a woman, men would not benefit from this, women would, as women would be the recipients of this sum.
Regardless of that fact, the reality is that this is a process that entails numerous factors, for instance, if a man was married to a doctor and she was killed, in civil court (in America) the lawyers would be arguing that as a result of her profession, her earning potential, and so on and so forth, she would be worth “X” amount of dollars. This process would occur in Shariah Law as well, whether it was a man, woman, whatever, and so those who give fixed amounts in Shariah, I am not sure where they get those amounts, as any “general rubric” would be exactly that: general.
In any court system you must account for the particulars, which renders general rubrics relatively useless, especially when you are attempting to establish the relative worth of the loss of life has upon a family, or the damages from an injury, etc.
I realize this isn’t the convenient answer, since people want neat and tidy responses, but the simple fact of the matter is that it does not exist, and at the end of the day, like I said at the start, it really matters from case-to-case.
I hope this answers your question, insha Allah.
I pray this reaches you and your families in the best of health and Iman, insha Allah.