Original damage, namely the damage pertaining to location of damage (injury), such in terms of assault with a weapon leading to death, or amputation of one of his bodily parts (limbs), or wounding him/her, or incapacitates one of his bodily organs (limbs), or causes its disfiguration.
The material subsidiary damage: the damage consequent upon the original damage, such as: sustaining damage from a serious wound, which incapacitates him/her from work throughout the period of treatment.
When the blood money prescribed by the Legislator is not mandatory, and punishment is not necessitated (Qissas in Arabic Language) it may be observed that there is a tendency in Muslim jurisprudence in such case calling for material compensation for consequent (subsidiary) damage, and it was according to the following reasoning for those that advocated it:
- Defined according to some (treatment fees) and according to some (pain suffered).
- Indemnification for a crime.. without determining this compensation provided it is not in excess of blood money for loss of the limb or organ subject of the crime.
- Payment for work incapacitation.
- When blood money determined by the Legislator is mandatory it is observed in this jurisprudential orientation that it is confined to compensation for the original damage, through blood money, without addressing compensation for the pain that might be sustained by the victim, the fees of the physician and the cost of medicine, and one who was disfigured due to this crime, as they did in the first case.
When Qissas (punishment) is obligatory the Muslim jurists confined themselves to Qissas, which connotes congruence between the crime and the punishment: where murder necessitates capital punishment, amputation of a hand necessitates amputation of a hand, and so forth.
What the victim sustained in real damages due to the crime should be taken into consideration: treatment expenses, including compensating him with an artificial limb, and the expense of being incapacitated from work.
Islamic Jurisprudence (Fiqh) differentiated between compensation for financial damage, and compensation for physical damage, for in the first case there should be congruence, which does not apply to the second case, to the exclusion of (Qissas) punishment.
Islamic Jurisprudence, insofar as crime against life, does not call for compensation for damages whose existence is not actualized.
Al-Kubaissi, Mahmoud Majid
"Compensation for Material Damage Resulting from Assault on Life in Islamic Jurisprudence (Fiqh) and the Applicable Emirati Law,"
Journal Sharia and Law: Vol. 2016
, Article 5.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2016/iss67/5