The Effect of the Loss of Function/Benefit on the Assessment of the Diyah for Limbs
All praise is due to Allah, Who grants honour to whomsoever He wills and humiliates whomsoever He wills. May blessings and peace be upon the one who came with guidance, upon his family and his righteous Companions, and upon all who call to his way and follow his Sunnah until the Day of Meeting.
Allah, the Exalted, revealed the religion of Islam for all mankind so that they can know Him and worship Him alone. He also revealed it to regulate people's lives and protect them from every harm. Among the laws He prescribed to deter crime and safeguard people's lives and honour are legal punishments. Some of these punishments are corporal, while others are financial. This reflects the profound wisdom of the Sacred Law (sharia), for people differ in their dispositions: some are deterred by physical punishment, while others are restrained by financial liability.
Among the clearest forms of financial liability legislated by Allah is the diyah (blood money). It was prescribed both as a deterrent to the offender and as compensation and redress for the victim. Its detailed rulings are extensively discussed in the books of Islamic jurisprudence.
It is established in the Sharia that one of the causes necessitating the payment of diyah is unlawful injury to one of the limbs of the human body, such as the hand, foot, tongue, and the like. Thus, if a person cuts off another's hand by mistake, the diyah becomes obligatory. In cases of intentional injury, it may likewise become payable if the parties agree to a settlement.
However, what is the ruling when the severed limb had already lost its function? For example, if someone amputates a paralysed hand, or cuts out the tongue of a mute person, should such a limb be treated in the same manner as a fully functional limb? Or does the loss of its function affect the obligation of the diyah, such that the full diyah is no longer due?
Injury to a Limb That Has Completely Lost Its Function
If the injury is inflicted upon a limb that has entirely lost its function, while the assailant is physically sound—for example, if a healthy person cuts off a paralysed hand, severs the tongue of a mute person, or removes the eye of a blind person—the jurists differed regarding the amount payable, assuming that the limb would otherwise have carried a prescribed diyah.
The Opinion of the Majority
The majority of jurists held that the full diyah is not due in such cases. Rather, what is obligatory is ḥukūmah, namely discretionary compensation assessed by qualified experts.
The Ḥanafī jurist Imām al-Mawṣilī said:
"For a paralysed hand, a blind eye, a crippled leg, a blackened tooth, or an extra finger, there is only a discretionary assessment (ḥukūmah), because no functional benefit has been lost. Nor is there beauty in a blackened tooth, nor utility in an extra finger. Discretionary compensation is nevertheless due in honour of the human being, since it remains part of his body."[1]
The Hanbalī Position
The Ḥanbalīs held that amputating a paralysed hand obligates one-third of the diyah prescribed for a healthy hand. Likewise, every limb that has completely lost its function carries one-third of its normal diyah.
Imām al-Mardāwī wrote:
"The obligation of one-third of the diyah applies to the paralysed hand, the paralysed male organ, the eye that remains in place but has lost sight, the blackened tooth, the penis of a castrated man, the impotent man, and the tongue of a mute person. This is among the distinctive rulings of the Hanbalī school."[2]
The View of al-Ḥasan al-Baṣrī
Some of the Successors (Tābiʿūn), including al-Ḥasan al-Baṣrī, maintained that the full diyah remains payable for a paralysed hand. Their reasoning was that although its function has disappeared, the physical form of the limb remains intact. Furthermore, amputating a limb causes permanent disfigurement, which itself warrants the full diyah.[3]
This reasoning carries considerable weight, for the unlawful assault is real in both its essence and outward form. Moreover, a limb possesses not only utility but also aesthetic value. Thus, even where its function has been lost, its beauty and bodily integrity remain worthy of legal consideration.
When Some Functional Benefit Remains
The foregoing rulings concern limbs that have completely lost all function. However, if some benefit remains—even if slight—the jurists differed.
Examples include:
• a paralysed hand that still retains limited ability to grasp;
• the tongue of a mute person that still possesses the faculty of taste.
First Opinion: The Majority
The majority of the Ḥanafīs, Shāfiʿīs, and Ḥanbalīs held that the full diyah is due whenever the limb retains any legally recognised benefit, however slight, such as weak grasping with the hand or tasting with the tongue.[4]
Second Opinion: The Mālikīs
The Mālikīs distinguished between slight and substantial benefit.
If only minimal function remains—for example, slight movement in the paralysed hand or negligible utility in the tongue of a mute person—then the full diyah is not payable. Rather, the amount awarded under discretionary compensation (ḥukūmah) is increased according to the remaining benefit. [5]
However, if the remaining function is significant—for instance, the hand has clear practical use or the tongue retains the faculty of taste—then the full diyah becomes obligatory.
Imām al-Dardīr stated:
"A paralysed hand is one that possesses no benefit whatsoever. Cutting it off entails only discretionary compensation. But if it retains any real benefit, then it is treated like a healthy hand with respect to both qiṣāṣ (lawful retaliation) and diyah."[6]
The view we are inclined to favour is that of the majority, because the degree of remaining function cannot be measured with precision. Since it is difficult to establish consistent standards, the safer course is to require the full diyah whenever a recognisable benefit remains.
The Eye of a One-Eyed Person
If someone destroys the remaining eye of a person who has sight in only one eye, should the compensation be half the diyah, because an eye is one member of a pair, or should it be the full diyah, because it represents the victim's entire faculty of sight?
The jurists differed.
The majority held that only half of the diyah is payable.
Imām Mālik, however, held that the full diyah is due.
Ibn Rushd wrote:
"Regarding the eye of a one-eyed person, the scholars have held two opinions. One is that it entails the full diyah. This is the view of Mālik, a number of the scholars of Madīnah, al-Layth, and was the judgement of ʿUmar ibn ʿAbd al-ʿAzīz, and it is also narrated from Ibn ʿUmar.
Al-Shāfiʿī, Abū Ḥanīfah, and al-Thawrī held that it entails only half the diyah, just as in the case of a person possessing two healthy eyes."
Imām Mālik reasoned that injuring the only functioning eye is, in reality, an assault upon the victim's entire faculty of vision, since he can see only through that eye.
The majority relied upon the Prophet's statement:
"For the eye there is half the diyah."
They argued that each eye is one of a pair of corresponding organs whose prescribed diyah is divided equally between them. The loss of the other eye does not alter that legal ruling.
They also cited the juristic consensus that if a person has only one hand and someone amputates it, only half of the diyah is due.
This view appears stronger because, in reality, the offence was committed against a single eye, whether intentionally or accidentally. It would therefore be inappropriate to impose the same financial liability as that incurred by one who destroys both eyes.
Injury Inflicted by a Person Whose Limb Has Lost Its Function
Suppose a person whose hand is paralysed unlawfully cuts off the healthy hand of another. Is he subject to qiṣāṣ (lawful retaliatory amputation)?
The jurists differed.
The Ḥanafīs and Ḥanbalīs held that retaliation may be carried out, although the victim may instead waive retaliation and receive the full diyah.
The Shāfiʿīs held that the victim has a choice: either demand the full diyah or insist upon retaliation while receiving compensation for the deficiency in the offender's paralysed hand.
The Mālikīs held that a paralysed hand which has lost all function is not amputated in retaliation for a healthy hand, due to the absence of legal equivalence. Likewise, a healthy hand is not amputated in retaliation for a paralysed hand, since reciprocity between the two is lacking.
Conclusion
Reflecting upon these rulings reveals the remarkable wisdom and realism of the jurists' legal reasoning. Their discussions distinguish between a paralysed hand that has no benefit whatsoever and one that retains even a minute degree of utility. Likewise, they distinguish between a tongue capable of articulating twenty letters and one capable of twenty-one.
Such fine distinctions demonstrate the precision of the classical jurists, the breadth of their legal insight, and the sophistication of their ijtihād.
And our final supplication is: All praise is due to Allah, Lord of the worlds.
