Restorative Justice in Islam with Special Reference to the Concept of Diyya
| Author | Absar Aftab Absar |
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| DOI | 10.1177/2516606920927277 |
| Subject Matter | Articles |
Restorative Justice in
Journal of Victimology
and Victim Justice
Islam with Special
3(1) 38–56, 2020
2020 National Law
Reference to the
University Delhi
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Absar Aftab Absar1
Abstract
The theme of Quranic commands is promoting collective goodness and virtuous
qualities in human beings and providing preventive and precautionary measures
to minimize the commission of crimes. However, in the event of happening of
crimes, fair and unbiased justice has been awarded the prime importance in the
Islamic law, derived mainly from the Holy Quran, Hadith and compilations of
Islamic jurisprudence. The Islamic law has deeply embedded elements of what
we call today as the restorative system; an alternative paradigm being advocated
globally since the 1970s for tackling the trend of rising crimes and relatively low
efficacy of the conventional retributive form of justice and the preventive theory
of punishment. The law of Qisas (retaliation), the practices of conciliation or Suluh,
restitution or compensation (Diyya, meaning blood money), isolation, forgiveness,
community service, warning, fining and reintegration are all components of the
Islamic law which are very much analogous to the concept of restorative justice.
In all these matters, the role of the victim is dominant and central, a mandatory
precondition of contemporary restorative practices.
It is particularly relevant to discuss about the provisions under Diyya; a unique
concept of the Islamic criminal justice system which is the payment of money
to the victim of a violent crime and is very much analogous to the attributes of
restorative justice. Diyya is not just limited to homicide; its provisions are applica-
ble for any injury or incident resulting in bodily harm, intentional or unintentional,
caused by another person. The payment can be made in substitution for the Qisas
penalty at the request of the victim or it can be imposed if any of the procedural
or substantive requirements for the imposition of Qisas have failed.
It needs to be pointed out here that Diyya is translated as ‘blood money’, a
negative connotation, undermining the virtues of this concept. It should better
1 Faculty of Law, Aligarh Muslim University, Aligarh, Uttar Pradesh, India.
Corresponding author:
Absar Aftab Absar, Faculty of Law, Aligarh Muslim University, Aligarh 202002, Uttar Pradesh, India.
E-mail: absaraftababsar@gmail.com
Absar 39
be seen as one of the best examples of restorative justice in the criminal justice
systems of the world in the form of restitution to the victim paid by the guilty
offender. There are numerous examples of implementation of Diyya in Islamic
countries, where not only the lives of those who had been awarded death pen-
alties were saved but also the families of victims were paid Diyya to help them
rehabilitate and restore their place in the society.
The procedures under Qisas and Diyya being victim-centric, the final option
that victims have in a case of intentional homicide or wounding is to forgo both
the penalty and restitution and forgive the offender; an act which has been highly
appreciated in the Holy Quran and Hadith.
It is pertinent to record here that the credibility of the concept of Diyya, its
utilitarian nature and its restorative character are unambiguous, not only because
it is a component of the Divine Law of Islam but also because of the fact that
systems like Diyya are in practice in countries such as Japan and Korea and had
been prevalent in many parts of Europe just about the time when Diyya was
included as a tenet of the Islamic law. The concept of Diyya convincingly illustrates
as to how restorative justice could have an edge over retributive and retaliatory
justice.
Keywords
Restorative justice, Islam, Islamic law, Qisas, Diyya
Introduction
The conventional criminal justice system neither does act effectively in prevention
of crimes nor as a deterrent. The system ironically is offender-centric, and criminals
take advantage of loopholes, such as inordinate delays, uncertainties in procedural
formalities and award of ineffective punishments to those who eventually get
convicted. Moreover, unethical and immoral practices in manoeuvring and
influencing legal process and facilitating bail and parole of hard-core criminals are
pervasive. The system is so much concerned with issues related to trial and
punishment to the offenders that it forgets the real victims and their sufferings.
Formal trial procedures are inexplicably long, often manipulated and influenced,
making the victim suffer physically, mentally and monetarily. Huge backlog of
cases2 accumulates because of these long procedures, corrupt practices and
administrative inefficiency resulting in sharply ascending cost of justice for all the
stakeholders including the State. The situation is particularly menacing for the
developing countries, and for India probably it has reached the threshold of being
called precarious.3
2 Gaurav Shukla, Pending Cases in Indian Courts, The Companion, 1 July 2016, available at www.
thecompanion.in.tli-pendency-in-indian-courts
3 N. R. Madhava Menon, Towards Restorative Criminal Justice, The hindu, 9 September 2016, available
at https://www.thehindu.com/opinion/lead/towards-restorative-criminal-justice/article8433634.ece
40
Journal of Victimology and Victim Justice 3(1)
The gravity of the situation was realized in the 1970s, and the jurists,
academicians, judiciary and the State, all showed concerns at various platforms
for adopting an alternate system, the restorative justice model. The first to react
were Canada, the USA, England and New Zealand, who have already completed
three decades of their experience with restorative justice. Many more common
law countries have, over this period, switched over to restorative justice to various
extents as an alternate criminal justice model. Conceptually, the restorative justice
involves all the three concerned parties: the offender, the victim and the community.
This way, the system is comparable to the good old system of resolving disputes
by village elders in which the community was taken in to confidence, solution to
the problem was to the victim’s satisfaction and the offender would seek pardon
and would acknowledge his obligations towards the victim and the society.4
The Islamic law is commonly misconstrued, to the extent that ‘an eye for an
eye’-kind of retributive justice is considered its characteristic feature. This is
because of the provision for the award of death penalties for Hudud, Hirabah and
Qisas (retaliation) crimes, very much highlighted by human rights groups.5
Contrary to this perception, the basic tenets of the doctrine of restorative justice,
developed in the 1970s, are enshrined in the texts of Islamic jurisprudence and
have been practiced for over 14 centuries in the form of Diyya (blood money) and
many other provisions, such as forgiveness and conciliation.
Historical Background of Restorative Justice
The story of the present movement of restorative justice began in a novel way
in 1974 when two juveniles who had committed 22 acts of vandalism in Elmira,
a suburb of Ontario in Canada, were presented before the court. Both the juvenile
offenders did not have any previous record of criminal activities and both pleaded
guilty. It was suggested to the judge that some unconventional and innova-
tive way may be investigated to handle this case. The judge was requested to
give approval to the two offenders to approach all their victims with a hope that
‘some therapeutic value’ might come out of this which may be very conducive
for the delivery of justice in this case. The judge was initially reluctant, but he
eventually ordered the boys to talk to each victim to ascertain the uninsured loss
and then to report back to him. Accompanied by two volunteers, the two juvenile
offenders approached all their victims and were able to determine the value of
uninsured goods to be submitted to the court. The judge ordered them to make
full restitution to the victims. This was the beginning of the concept of restorative
4 uniTed naTions office on drugs and crime, handbook on resToraTive JusTice Programmes (2006),
available at www.unodc.org/pdf/criminal_justice/06–56290_Ebook.pdf
5 amnesTy inTernaTional, killing in The name of JusTice: The deaTh PenalTy in saudi arabia (2015);
human righTs WaTch, Precarious JusTice: arbiTrary deTenTion and unfair Trials in The deficienT
criminal JusTice sysTem of saudi arabia, Volume 20 No. (3)E (2008), available at https://www.hrw.
org/reports/2008/saudijustice0308/
Absar 41
justice and the Victim–Offender Reconciliation Program (VORP).6 This model
of restorative justice was suggested as an alternative model with a potential to
replace the punitive model.7 This was, however, not the origin of the concept, but
revival of a system of justice that existed from the time of the earliest human
societies to about 500 ad.8 During this earliest period, principal concerns were to
satisfy the victim and to restore their lost power and distorted social status with
attention also being paid towards being just and beneficial to offenders too.9 From
about 500 to 1500 or during the Middle Ages, victims’ interest was slowly replaced
by the interests of the State, and restitution to...
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