3 - The ‘Āqila’s Liability for Homicide Restricted and Justified

Summary

The ‘āqila -- a group of men liable for the payment of blood money on behalf of any of them -- is based on collective liability. When the Shari‘a borrowed this institution from pre-Islamic, tribal custom, a contradiction was created with the Islamic important principle of individual responsibility. This chapter focuses on this contradiction, examining the means by which Muslims jurists attempted to settle, reduce, or justify the paradox, and how these efforts contributed to shaping the law. One way was to restrict the liability of the ‘āqila to accidental homicide, leaving the perpetrator alone liable for intentional homicide. Another solution was to develop arguments that either denied the contradiction or enhanced the importance of the ‘āqila to justify the existence of the institution despite the contradiction involved. It is argued that the changes introduced in rules related to the ‘āqila, and the proposed justifications, brought homicide, which in pre-Islamic Arab custom was treated as a tort, closer to a crime.