Q. I would like to raise the question of compensation in the case of accidental killing. I want to know why Islamic law seems to discriminate between Muslims and non-Muslims. My studies confirm that compensation paid to the family of a Christian or a Jew accidentally killed is half of that paid when the victim is Muslim. How can this be applicable in modern societies where all citizens should be equally treated?
David J.B.
A. We have already answered one question from Mr. David in our Friday edition. David started to study the Islamic law (Shariah) applied in Saudi Arabia, Iran and Afghanistan after the horrific 9/11 attacks on the US by allegedly Saudis belonging to Al-Qaeda group. He says after his thorough study, “I do believe the Shariah is a ready-made divine law and many of its penal codes served Muslim society well since the 7th century A.D. Its penal code was more humane in comparison with those man-made laws of other societies. However, in recent time while other societies reformed and improved their legal systems, especially in the last century, the Shariah law remained unchanged, as it was 14 centuries ago, undergoing no reform or amendment.” So he has some questions on the Shariah laws that he feels “difficult to understand in the 21st century”. Hence these questions.
I am grateful to David on two counts: 1) his interest in Islamic law, and 2) his open and clear questions that reflect a genuine desire to understand Islam and Muslims. His questions touch on some thorny problems, but these are only thorny because of our failure to understand Islam properly on the one hand, and the unwillingness of some of us to admit that views other than those we have learned could be acceptable from the Islamic point of view. David asks a total of 10 questions, and some of them need long answers. I am explaining today my premise before taking up his other questions in detail.
Our reader’s study, which he describes as extensive, led him to the conclusion that Islamic law, or Shariah, is a divine law, which means that it is not man-made. To start with, any amendment to any law can only be by an authority that is equal or superior to the one that put that law in place. In any democracy, the repeal or amendment of any law enacted by Parliament requires a new act by the same Parliament. In the US, when Congress approves a law, the president can express his objection to it by sending it back to Congress for review or amendment. He cannot amend it himself. When a bill is signed by the president, it cannot be repealed except by a new bill that goes first to Congress before it is signed by the president. This is both logical and necessary. Now, since the Shariah, or Islamic law, is divine, who other than the Divine Being can amend or repeal it?
God sent down His message to mankind through revelations received by the Prophet Muhammad (peace be upon him). It was God who decided that Muhammad will be His last Messenger. God is aware that human life progresses as they learn more about their universe. His knowledge of this fact is not the result of any advancement human beings make. He knew it before He created man. Indeed God’s knowledge is perfect and cannot be related to time or experience. Therefore, when He issued His law, the Shariah, He made it suitable for all times and communities. Otherwise, He would have indicated that this law would be subject to amendment, and would have outlined the procedure for such amendment. What all this means is that no legislative, executive or judicial authority has the power to amend God’s law, which must be implemented in full.
The term “Shariah law” is nowadays used by Western media as though it is a mere penal code. They always speak of it as a system of punishments that are no longer suitable for modern human society. This betrays clear ignorance. The Shariah, or Islamic law, is a complete system that caters for all the legal needs of human society. It provides legislation on all aspects of human life. These are detailed where the degree of human progress and advancement is irrelevant, and given in general terms where different conditions have substantial bearing on the needed legislation. Thus, on social economy, Islamic law provides a general framework based on a few basic principles, while on inheritance, it gives a detailed legislation that cannot be changed.
What this means is that we cannot use the time factor as an argument for changing the divine law. We have to operate it as it is, knowing that we can determine the details of any aspect where only a framework is given, while we have to stick to the law as it is where it gives us detailed rules. Thus, we cannot change mandatory punishments God has specified for certain crimes, but these are only seven according to the majority of scholars. Some scholars with profound insight say they are four. The three discounted ones are drinking, rebellion against an Islamic ruler and apostasy. For the rest of offenses people may commit, the punishment is discretionary, determined by suitable enactments that may differ from time to time, and from case to case.
The flexibility of Islamic law has led to the existence of several schools of thought, which differ in their methodologies of construction and deduction. There are altogether eight schools of thought that claim large following in different parts of the Muslim world today. We find among these schools major differences, but all are acceptable. No Muslim can say that his school of thought is the only correct one. This does not exist in the Muslim world. In other religions, you may find people unwilling to worship in the places of worship belonging to the same faith, but to different schools. When a Christian, for example, finds himself in a city or a country other than his own on a Sunday, he enquires about a church of his own denomination. He may treat other denominations with full respect, but he may prefer not to attend church at all if he does not find one of his own sect. By contrast, it does not occur to a Muslim to inquire about the school of thought the imam follows. Yet there may be differences in form and style, but the worship is the same. We all believe that the Qur’an is God’s word which will never change, and that it is binding on all mankind for the rest of time. We have differences in understanding, which lead to differences in rules and regulations, but these are inconsequential.
Let us take the case the reader has outlined, which is the compensation paid to the family of an accidentally killed non-Muslim. The commonly held view is that such compensation is half what is paid for a Muslim killed by accident. This is based on a Hadith related by Ahmad, stating that: “The Prophet ruled that the blood money payable for a person of the people of earlier revelations, (i.e. a Christian or a Jew), is half of that for a Muslim.” As this Hadith is related by Ahmad, the founder of the Hanbali school of thought, it is upheld by this school, as also by Malik and Umar ibn Abd Al-Azeez. By contrast, Imam Abu Haneefah and Al-Thawri rule that the blood money payable to non-Muslims is the same as that payable to Muslims. This is reported to be upheld by Umar ibn Al-Khattab and Uthman, the second and third caliphs respectively, as well as Ibn Massoud, one of the best scholars among the Prophet’s companions.
Faced with this difference of views, we need to refer to the evidence supporting each view, and to look into the arguments given for each. We have already cited the Hadith supporting the first view. The second view relies on the Qur’anic verse that speaks about accidental killing, and includes the statement: “If he (the victim) belonged to a people with whom you are bound by a covenant, then the penalty is an indemnity to be paid to his family and the freeing of a believing soul from bondage.” (4: 92) The penalty specified here is exactly the same as in the case of a Muslim, stated earlier in the same verse. It should be explained that non-Muslims, living in a Muslim society, are covered by this statement as we are bound with them by a covenant of citizenship.
Al-Zuhri, a major scholar who belonged to the Tabieen generation, i.e. the one that followed the Prophet and his companions, says: “The blood money for a Jew, a Christian or any non-Muslim is the same as that for a Muslim. Thus was the practice during the time of the Prophet, Abu Bakr, Umar, Uthman and Ali (i.e. the four rightly-guided caliphs). When Mu’awiyah (the sixth caliph) ruled, he made half of it payable to the state and the other half to the victim’s family. Then Umar ibn Abd Al-Azeez, (who was a scholar and a caliph ruling briefly at the end of the 1st century of Islam,) canceled the one half payable to the state but did not touch the one half payable to the victim’s family.” Al-Zuhri continues: “I did not have the chance to remind Umar ibn Abd Al-Azeez of the fact that blood money was paid in full to the victim’s family.”
Al-Zuhri is indisputably a learned scholar who was among Imam Malik’s teachers. His report is very significant. Where we have such differences, the door is open for ijtihad, or scholarly effort aimed at finding a suitable and correct ruling. Moreover, where scholars differ with valid arguments supporting each view, a ruler can endorse the view he feels to serve the best interests of the community. However, such legislative system is not operated in most Muslim countries today. Therefore, we need to reactivate this process. But we more urgently need a return to Islamic law in full, as it has unfortunately been inactivated in most Muslim countries since colonial times and under mostly military governments.
We will deal with David’s other questions over the next couple of weeks, God willing.