Review of Collective Liability in Islam: The ʿĀqila and Blood-Money Payments by Nurit Tsafrir

Abstract

A man came before al-Hajjaj (d. 95/714) complaining that his house had been demolished and his stipend (ʿaṭāʾ) suspended because of the misdemeanours of a fellow tribesman. ‘That’s too bad’, the governor replied, ‘have you not heard the poet say: ‘…it might be that someone is seized for the sin of his tribesman/while the one who commits the deed escapes’?’ ‘God rectify the governor’, the man replied, ‘I have heard God say otherwise.’ ‘How so?’ al-Hajjajasked. The man recited: ‘“O Minister! He has an aged father, so take one of us in his place: we see you as one of the virtuous.” He [Joseph] said, “We seek refuge in God that we should seize someone other than him in whose possession our [stolen] goods were found; otherwise, we would be of the wrongdoers”’ (Q. 12:78–79). Al-Hajjajordered that the man’s house be rebuilt, his stipend restored, and that a crier announce ‘God has spoken the truth, and the poet has lied!’ As this anecdote stresses, and al-Hajjaj pointedly recognises, the principle of individual responsibility is crucial to Islam’s moral weltanschauung. It marks a significant departure from jāhilī ethics, which were tribal in character and stressed group loyalty to the detriment of all else: ‘Succour your brother, oppressor or oppressed’. Nurit Tsafrir’s brilliantly researched monograph on the institution of the ʿāqila, its adoption and subsequent modification under the Umayyads and the Hanafī School, sheds much needed light on this development, and on how the careful reading of legal and other sources can allow for the reconstruction of aspects of social and legal history. The ʿāqila is the group responsible for the payment of blood-money in cases of non-intentional homicide or injury. Jurists conceded that while its origins are indeed jāhilī, the Prophet confirmed (aqarra) this institution, rendering it properly Islamic. That those not responsible for offences should still bear the financial burden of compensation clearly reflects the tribal context of the Prophet’s mission, and seemingly contradicts, Tsafrir observes, the principle of individual responsibility, a tension jurists alternately recognised and explained away (2–3). The Hijaz had no history of state formation prior to Islam, and as generations of Islamicists have remarked, the resulting law of homicide resembles a civil more than it does a criminal wrong (8). According to the jurists, it in fact belongs to a composite category, since the perpetrator is required to atone for their sin irrespective of any compensation (15).