Abstrict

Islam gives detailed injunctions not only for individuals but also for collectivity, and the Constitution of the Islamic Republic of Pakistan makes it obligatory on State to enable Muslims to live their individual and a collective life in accordance with the Islamic teachings. An important aspect of the Islamic way of life is that individuals and collectivity provide help and support to each other. This aspect is particularly exemplified by the institution of ‘Aqilah’, which was established for sharing the burden of the payment of Diyat. Thus, it became an essential element of Muslim society, and it gave rise to the notion of vicarious liability. The present paper explores Islamic Injunctions on this issue and proposes the establishment of the institution of Aqilah for better enforcement of the law of Diyat in Pakistan.

Keywords

Diyat, Aqilah, Vicarious Liability

Introduction

The Qur’an and the Sunnah envisage the concept of collective responsibility of the Muslim community to help oppressed and needy. There are various aspects of this responsibility. The present paper explores the details of only one aspect of this responsibility, namely the institution of Aqilah, for sharing the burden of Diyat. With the help of qualitative and deductive research methodology, operational framework of the research at hand has been divided into the following three categories: In part first, Islamic Injunctions about the general obligation of mutual help and support have been examined. In the part second, with the help of various examples, the notions of recommended and obligatory help and support have been explicated. In part three, provisions of Islamic law about the institution of Aqilah for the purpose of payment of Diyat has been examined. 









Relying on the Sunnah, the jurists hold that ‘ransom’ here means any form of consideration and that it could take several forms, such as exchange of prisoners, providing some services, parole and obtaining some property from the adversary. The Prophet (peace be on him) also accepted services such as teaching writing skills to Muslim children as consideration for release to a prisoner. Likewise, a poet Abu ‘Izzah from among the captives of the Battle of Badr was released by the Prophet on parole. He violated the conditions of parole and was again captured in the Battle of Uhud. There are examples of release on parole by non-Muslims as well. Thus, Hudhayfah b. al-Yaman and father (God be please with them both) were captured by Quraysh just before the Battle of Badr and were, then, released on the condition that they would not participate in the war. When they came to the Prophet (peace be on him) and expressed their eagerness to participate the first major encounter with non-Muslims, the Prophet (peace be on him) told them: “You go from here. We must abide by the promise that we made with them, and we will seek Allah’s help against them.” (Al-Qushayri, al-Sahih, Kitab al-Jihad wa ’l-Siyar). Similarly, the Prophet (peace be on him) received ransom in on several occasions, most famous being on the eve of the Battle of Badr. 

Sometimes the adversary would demand ransom for the release of a Muslim prisoner. So, Muslim jurists discuss the various options available to the Muslim government for the purpose of getting its prisoners released by the adversary. In this regard, they discuss the permissibility of paying money to the adversary and cite many traditions of Prophet (peace be on him) in which he mentions this responsibility of the government towards its people: 




Before discussing further details about Aqilah, it is pertinent to note here that these Prophetic traditions establish the principle that the responsibility for payment of debts or ransom devolves on the government only when the person does not have a wali. Conversely, the property of such a person goes to the government only when he does not have an heir. So, the principal acts in both ways. Importantly, the Prophet (peace be on him) devised several mechanisms for fulfilling the obligation of mutual help and support. Thus, the liability would devolve on government only when these mechanisms would not be sufficient for fulfilling the obligation. The institution of Aqilah for sharing the burden of Diyat was just one such mechanism. This point needs further elaboration. 

Vicarious Liability and ‘Aqilah

‘Aqilah (pl. of ‘Aqil) means those who pay ‘aql, i.e., Diyat. The word ‘aql literally means to tie up. Intellect or reason is called ‘aql because it restrains a person from making foolish statements or actions. The jurists say that those who paid Diyat were called ‘Aqilah because they would tie up camels in the courtyard of the heirs of the victim. Another explanation is that payment of Diyat would tie up the tongue of the heirs of the victim so that they would no longer talk of revenge (Ibn Qudamah, al-Mughni, 12:39; Kasani, Bada’i‘al-Sana’i‘, 10:312-314; al-Mawsu’ah al-Fiqhiyyah, Encyclopedia of Islamic Law; Kuwait: Ministry of Religious Affairs, 1983). A renowned Egyptian scholar Dr. ‘Awd Muhammad ‘Awd wrote a concise but comprehensive booklet on the concept of ‘Aqilah which Dr Sajid al-Rahman Siddiqi translated into Urdu under the title The concept of 'Aqilah' in Islamic jurisprudence, published by the Shariah Academy, Islamabad, in 1993. As this institution existed in the Arab society before the Prophet (peace be on him) gave instructions about it, some contemporary scholars have expressed their opinion that the traditions about Aqilah were relevant only in the context of the tribal society in Arabs and that it is no longer relevant in the contemporary world.  This necessitates a discussion on the relationship of the Sunnah with the Arab customs. 

An Arab Custom or a Perpetual Precept of the Shari‘ah

It is true that some rules of Islamic law were based on custom and that these rules may change with the change of the customs of the society (Section 39 of the Majallat al-Ahkam al-‘Adliyyah). However, the first presumption of the Muslim jurists is that any rule found in the texts of the Qur’an and the Sunnah is meant to be perpetual unless proved otherwise.  Undoubtedly, the institution of ‘Aqilah existed in the Arab society, and the Prophet (peace be on him) adopted this institution with a few changes through his sayings, acts and tacit approvals. However, the same is true for prayer, fasting, zakat, and hajj. Arabs were well aware of these concepts, and they were practising them as well (Ali, 2001). The Qur’an testifies that these practices were there since the time of Prophet Ibrahim (peace be on him). However, several innovations were added to them, and they were practised in a corrupted form. The Prophet (peace be on him) introduced them in their purest form, removing innovations from them, made changes in them, added new dimensions to them, and established them in the Muslim society for perpetual existence. The same is true of the institution of Aqilah. 

One argument for Aqilah being a perpetual concept of the Shari‘ah is that the Prophet (peace be on him) established this institution in Madinah as well even though Madinan society was quite different from the Makkan society (Al-Rahman, 1997; Hamidullah, 2006). For instance, Makkah was inhabited by one major tribe of the Quraysh. This tribe had many clans and sub-clans which had alliances with each other through the concept of hilf (oath). Non-Qurayshites could not survive in that society without having some formal relationship such as jiwar (refuge) or wala’ (clientage) with any of these clans. When the Prophet (peace be on him) migrated to Madinah, that society was quite different. It had two major Arab tribes, Aws and Khazraj, and three major tribes of the Jews, Banu Qaynuqa‘, Banu al-Nadir and Banu Qurayzah. Each of these tribes had clans and sub-clans. When Muslims from Makkah wanted to settle there, they faced a peculiar problem as they left their major tribe in Makkah. Moreover, they were joined by Muslims from across the Arabian Peninsula belonging to different tribes. When the Prophet (peace be on him) introduced the institution of Mu’akhah (brotherhood) between the Migrants and the Helpers, it was a new form of mutual support which was based on a modified version of the concepts of hilf, jiwar and wala’. Moreover, as the sub-clans of the Arab and the Jewish tribes of Madinah already had alliances with each other and they also had agreements about mutual support for payment of Diyat etc., the Prophet (peace be on him) included special provisions about these issues in the treaty between Muslims and Jews, commonly known as the Pact of Madinah. 

Aqilah in the Constitution of the State of Madinah

Dr. Muhammad Hamidullah (2002) compiled the text of this significant document in his collection of the legal documents of the era of the Prophet (peace be on him) and the Rightly-guided Caliphs (God be pleased with him). He also translated the text of this document into English and wrote a detailed introduction on it. This translation has been published as “The First Written Constitution in the World” (Hamidullah, 1987; Al-Buti, 1991). Some scholars prefer to call this document as an international treaty, instead of a constitution. In the US constitutional law, there is also an interesting debate on whether or not the Constitution of a federation is a treaty (Martin, 2007). For instance, with an Islamic perspective, it provided the following provision about the diyat imposed on the emigrants from among the Quraysh: 



Aqilah during the Reign of Caliph ‘Umar (God be Pleased with him)

Similarly, when the Companions of the Prophet (peace be on him) conquered new lands where societies were quite different from the tribal setup of the Arab society, they devised new ways for establishing Aqilah there. For instance, Umar (God be pleased with him), the second caliph, decided that all those soldiers would be deemed forming Aqilah for each other who belonged to one battalion and whose names were recorded in one register (diwan), which would also contain a record of the allowances that the government gave them. They were called “people of the same register” (ahl al-diwan) (Musannaf Ibn Abi Shaybah, Kitab al-Diyat, Bab al-Diyah fi Kam Tu’adda). Similarly, registers were made for people belonging to various professions. None of the Companions objected to this decision, and it was implemented throughout the lands which were ruled by Muslims. As noted earlier, this was a kind of tacit consensus of the Companions (Kasani, Bada’i‘al-Sana’i‘, 10:314). 

Minimum Core of Aqilah 

The claim of the contemporary scholars that Aqilah does not exist in the contemporary world is not well-founded because many Muslim countries have provisions in their legal system for Aqilah. Moreover, the bare minimum core of Aqilah exists in the form of the asabat (agnates) from among the relatives of the convict. As mentioned above, the Prophet (peace be on him) imposed Diyat on the ‘asabat of the convict (Sahih al-Bukhari, Kitab al-Diyat, Bab Janin al-Mar’ah). On the basis of the traditions on this issue, jurists have generally included ‘asabat in the ‘aqilah, including Shi‘ah jurists (Section 468 of the Islamic Penal Code, Iran). Even the Hanafi jurists, who relying on the precedent of Caliph Umar (God be pleased with him) opined that the ahl al-diwan were to act Aqilah, also asserted that in the absence of the ahl al-diwan the liability reverts to the ‘asabat (Kasani, Bada’i‘al-Sana’i‘, 10:315). 

It may be recalled that the provisions of Chapter XVI, PPC, entitle the heirs of the victim to Diyat and also give them the right to waive or compound the right of Qisas, but they are silent on corresponding liabilities of the heirs of the convict. Similarly, these provisions make the government the wali for the victim when there is no other wali, but they are silent on the government being wali for the convict when he does not have any other wali. This gap on the liability side needs to be filled through interpretation in the light of the Islamic Injunctions. 



Second, as the jurists explain, ‘Aqilah does not put one’s burden on another; rather, it is the individual burden of each and every member of the Aqilah. The jurists give the example of imposing the obligation on an individual for the maintenance of his wife, children, and other relatives. As one cannot hold the obligation of maintenance to be a violation of the dictum, no burdened soul can bear another’s burden; the same is true of the obligation of the Aqilah to contribute to the payment of Diyat. As noted earlier, it is an example of the obligatory ta‘awun and nasr. 

Third, as per the Islamic Injunctions, Diyat is not a punishment and, hence, the argument of individual criminal responsibility is not attracted here. As noted earlier, it is a token that signifies the value of human life; no human life should go waste. Moreover, it is a kind of compensation to the heirs of the victim. This point will be further elaborated in the next section. 



Conclusion

From the above arguments, it can be safely concluded that the institution of Aqilah is an essential part of the scheme of the Shari‘ah pertaining to the concept of Diyat, although it may take new forms and shapes in new social contexts. It serves many purposes, but not restricted to, developing a mechanism of mutual help and support by individuals within a society, sharing of burden with the destitute and better prevention of crimes. The institution of Aqilah forms an essential part of the Islamic dispensation of justice and enforcing the law of Diyat without establishing the institution of Aqilah has created many anomalies in Pakistan. This paper established that the institution of Aqilah is based on the concept of vicarious liability and it has it roots in the notions of mutual help and support which, in turn, form the backbone of the Muslim society. Hence, it is essential to make proper legislation for establishing this institution. This will not only help in the effective implementation of the law of Diyat, but will also help in strengthening the family relations and the social fabric. 

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