فِقهُ الدِّيَاتِ وَالقِصَاص — الدِّيَاتُ وَالقِصَاصُ فِي الفِقهِ الإِسلَامِيّ: الإِطَارُ القُرآنِيُّ لِلآيَتَينِ 2:178 وَ5:45 وَمَوَاقِفُ المَذَاهِبِ مِن وُجُوبِ القِصَاصِ وَمِقدَارُ الدِّيَةِ وَمَن يَدفَعُهَا وَالتَّقنِينَاتُ الوَطَنِيَّةُ الحَدِيثَة
Fiqh al-Diyat wal-Qisas (فِقهُ الدِّيَاتِ وَالقِصَاص — Jurisprudence of Blood Money and Retaliation; *qisas*: retaliation in kind [from *q-s-s*: to trace, to follow]; the principle of equal counter-injury; *diya*: blood money; compensation paid to victims or their heirs as an alternative to qisas; the Quranic framework: 2:178 'O believers, retaliation [qisas] is prescribed for you in cases of killing: free for free, slave for slave, female for female; but if the killer is pardoned by the next of kin, then follow-up [of the blood money] should be in a reasonable manner'; 5:45 'We prescribed for them therein: soul for soul, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds in retaliation'; the three categories of homicide and injury: [1] 'amd [intentional killing/wounding]: triggers qisas as the right of the victim's family, with the alternative of accepting diya; [2] shibh al-'amd [quasi-intentional: using an instrument not normally lethal]: diya is owed but qisas is not; [3] khata' [accidental killing]: diya only; no qisas; the diya amounts: for death: 100 camels [or their monetary equivalent] is the classical standard; payable by the 'aqila [the killer's male agnatic kinship group] for accidental death; payable by the killer himself for intentional killing [where the family has accepted diya instead of qisas]; for body parts: the Quran gives tooth-for-tooth; classical law developed a full table — for a hand: 50 camels; for one eye: 50 camels; for a molar: 5 camels; who has the right to pardon: the victim's heirs [wali al-dam, guardian of the blood]; they can: [1] demand qisas; [2] accept diya [monetary composition]; [3] forgive entirely; the Quran makes pardon praiseworthy: 5:45 'to forgo it is an act of charity'; the schools' positions: the four schools largely agree on the framework but differ on: whether a Muslim can be killed in qisas for a non-Muslim [Hanafi: yes; Shafi'i/Hanbali: no]; whether the 'aqila [kinship group] pays for intentional killing [no — only accidental]; whether a man is killed for killing a woman [yes, majority; with debate]; the diya of a woman: classical view: half the diya of a man; contested in modern Islamic scholarship and law; modern codifications: Saudi Arabia, Pakistan, Iran, Yemen, and other states have codified qisas and diya laws; notable: the Saudi system allows the victim's family to demand blood money in lieu of execution and has led to very large monetary settlements in high-profile cases) is the Islamic framework for making homicide and injury whole.
The Structure of Islamic Homicide Law
Islamic law approaches homicide not as a purely public crime (in which the state punishes the killer) but as a wrong against the victim’s family, who have rights that the state must vindicate. This is the fundamental difference from modern criminal law frameworks.
The victim’s family (wali al-dam, guardian of the blood) has three options: demand retaliation in kind (qisas), accept monetary compensation (diya), or forgive entirely. The Quran calls forgiveness a praiseworthy act of charity (5:45). This structure gives the victim’s family substantial agency in the outcome.
The Three Categories of Homicide
Classical fiqh’s three-category system distinguishes radically different levels of culpability:
‘Amd (intentional): Deliberate killing with a lethal instrument. The victim’s family can demand qisas (execution) or accept diya from the killer personally. The state’s role is to enforce whichever the family chooses.
Shibh al-‘amd (quasi-intentional): Striking someone with an instrument not normally lethal (like a stick) but causing death. The killer owes enhanced diya (mughallaza, increased amount) but not qisas — the instrument indicates less than full intent to kill.
Khata’ (accidental): Unintentional killing (like accidentally hitting someone with an arrow). Standard diya is owed; no qisas. Crucially, in this case the diya is paid not by the killer personally but by his ‘aqila (male agnatic relatives) — a form of collective family liability that spread the cost of accidents.
The ‘Aqila: Collective Responsibility
The ‘aqila system — where a killer’s kinship group pays diya for accidental homicide — reflects a tribal social structure in which collective responsibility was both meaningful and practically enforceable. Critics note that it creates moral hazard (your kin pay, not you); supporters note it distributes risk across the group that also benefits from your membership.
Modern codifications have generally replaced the ‘aqila with insurance mechanisms or state compensation funds, while retaining the qisas-diya framework.
See also: Fiqh Al Uqubat Al Islamiyya, Fiqh Al Shahada Wal Bayyina, Fiqh Al Ahkam Al Khamsah, Fiqh Al Sulh Wal Tahkim, Fiqh Al Ijtihad Wal Taqlid