Collective Liability in Islam: The ‘Āqila and Blood-Money Payments
COLLECTIVE LIABILITY IN ISLAM – Book Sample
Preface – COLLECTIVE LIABILITY IN ISLAM
This book is concerned with a legal institution of the Sharī‘a known in Arabic as the ‘āqila. The ‘āqila is a group with joint liability for the payment of compensation for homicide or bodily injury (‘aql or diya) caused by any of the group’s members. This institution, of which there is no mention in the Qur᾿ān, goes back to pre-Islamic Arab society, as its name reflects.
The words ‘aql and ‘āqila both come from the root ‘-q-l. Words derived from this root often have meanings related to “binding.” According to one explanation, the term ‘aql in the meaning of blood money reflects the ancient Arab practice of paying blood money in camels that were bound (tu‘qalu) in the courtyard of the victim.1 The ‘āqila are those who pay the ‘aql, that is, bring and bind the camels. According to another explanation, the word ‘aql in this context means “a restraint,” referring to the role of blood money in restraining the parties from further bloodshed.2
Hence, the ‘āqila are “those who restrain,” or “hold back,” because by paying the blood money they bring about the end of the conflict, thus restraining the parties from further bloodshed.
As the latter explanation suggests, the ‘āqila is essential for the main- tenance of social order, and the question of whom it includes, that is, who is liable for the payment of blood money in a given case, is of major importance. This is illustrated by an early account preserved by Ibn Hishām (d. 218/833) in his biography of the Prophet Muhammad, in which he describes one of the ways by which liability for blood money
was determined among the Arabs before Islam. According to this account (of which there are several versions), seven arrows were kept next to the image of Hubal, the greatest god of Quraysh, which was situated by a well (bi᾿r) inside the Ka‘ba. The Arabs would interpret the god’s answers to important questions by means of these arrows.3
One of the arrows, on which the word ‘aql was written, served to identify the person liable for blood money in a case of a homicide. When a dispute arose on such a question, the Arabs would cast the seven arrows, and the obligation to pay would be imposed on the person indicated by this arrow (how exactly this was indicated Ibn Hishām does not say).4
Three other arrows out of the seven in the Ka‘ba were used to decide whether a person belonged to a particular tribe by descent, or was merely an ally of that tribe, or was neither a tribesman by descent nor an ally. It is not surprising that almost half the arrows served to clarify questions concerning tribal affiliation. In pre-Islamic Arabia, where almost everyone was a member of a tribe, and where the tribe was the individual’s source of security and identity, there was no more import- ant question.
Liability for blood money was closely tied to tribal affili- ation.5 Salient expressions of the tribal framework were, on the one hand, the tribesmen’s obligation to avenge the blood of a fellow tribes- man (or, alternatively, their right to financial compensation for his spilled blood)6 and, on the other hand, their joint responsibility to undertake the payment of blood money for a homicide perpetrated by a tribal member; that is, “the limits of the obligation to pay blood money are also the limits of the tribal group.”7
It follows that the network of obligations to pay blood money in pre-Islamic Arab tribal society reflected its internal lines of demarcation.
Not only did liability for blood money reflect these lines but also it contributed to their maintenance and even to their creation.
With the transition from Jāhiliyya to Islam, the obligation to pay blood money remained an important means of drawing social borderlines. A revealing example is in the Constitution of Medina, which is considered the oldest document from the time of Muhammad, and in which
pre-Islamic tradition is still very recognizable. _The composition of the
Constitution of Medina, which is discussed in Part II, is ascribed to the Prophet Muhammad. In this document, the Prophet drew up the lines of
solidarity wit_hin the new political entity that he had founded in Medina
(and whose later growth he could not have imagined). Whether he left existing solidarity groups as they were or created new ones, the criterion by which the Prophet defined these groups was ancient, and familiar to all concerned. The Muhājirūn, men from various tribal groups of Quraysh in Mecca who had attached themselves to the Prophet in migrating to Medina, would pay blood money for each other, thereby breaking their ties with their original, pre-Islamic tribal units and becom- ing a new unit.
Other groups from Medina are also defined in the Constitution by means of a mutual obligation to pay blood money.8 From other sources we learn that the Prophet also laid down joint liability for blood money, albeit for a limited sum, between the
Muhājirūn and the Ansār, his supporters from Medina.9 This was doubt- less a step toward uni_fying the two groups under the flag of Islam. The
shared liability for the payment of blood money, the most obvious characteristic of pre-Islamic tribal affiliation, and the quintessential symbol of group solidarity known to the Prophet and to his contempor- aries, assumes here an Islamic dress, but continues to fill a traditional role, that is, sanctioning or redefining social groups.
The obligation to pay blood money played a similar role in the norms related to an old Islamic institution, walā’. Although Islam sought to wipe away tribal loyalties in favor of a commitment to the entire community (the umma), the early converts who joined the Islamic com- munity, as well as other individuals who had no blood relations within it, still needed a substitute for a family or a tribe. According to Ḥanafī law, walā’ provided an alternative, namely a Muslim patron (mawlā) who gave his protection to such an individual, who was his client (also called a mawlā). A basic obligation of the patron to his client was to pay
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