Islamic Propagation Office of Qom Seminary, Khorasan Razavi Branch Journal of Islamic Law and Jurisprudence 2476-7565 7 2 2021 08 23 Explaining the Jurisprudential Evidence in the Theory of the Optionality of Retaliation Right Explaining the Jurisprudential Evidence in the Theory of the Optionality of Retaliation Right 73 112 70131 10.22034/jrj.2020.55597.1840 FA Seyed Hashem Aletaha PhD in Criminal Law and Criminology at Qom Azad University and Lawyer; (Corresponding Author) Ahmad Haji DehAbadi Associate Professor of Criminal Law and Criminology at Farabi University Of Qom, Qom, Iran Journal Article 2019 10 14 Based on the theory that says the retaliation (Qiṣaṣ( right is takhyīrī (choosing between two or more alternatives), the next of kin (Walī Dam) and victim are free to choose the retaliation or to ask for the blood money. On the other hand, proponents of the theory that says this right is absolute obligatoriness (taʻyīnī), believe that the next of kin and injured persons in intentional crimes do not have the right to demand blood money without criminal’s consent. Taʻyīnī theory, from the beginning, was made the basis of Islamic criminal law by the lawmaker of the Islamic Republic. However, because in practice, this theory is facing problems and negative consequences such as shed the murdered blood with impunity, in 1392/2013 the lawmaker, following some jurists, passed a law that in cases where the retaliation is conditional upon the rejection of blood money differentials (Faḍil), the next of kin do not have the right to demand blood money. Nevertheless, there are still some practical problems of Taʻyīnī theory. The domination of the theory which says retaliation right being optional (Takhyīrī) in law is the only way to solve this problems. Assuming that evidences of this theory in Imami fiqh are rare and its principles are weak, the lawmaker has not made it the basis of the law. This study has tried to prove that the theory is not rare and its fiqhi evidences are convincing. Based on the theory that says the retaliation (Qiṣaṣ( right is takhyīrī (choosing between two or more alternatives), the next of kin (Walī Dam) and victim are free to choose the retaliation or to ask for the blood money. On the other hand, proponents of the theory that says this right is absolute obligatoriness (taʻyīnī), believe that the next of kin and injured persons in intentional crimes do not have the right to demand blood money without criminal’s consent. Taʻyīnī theory, from the beginning, was made the basis of Islamic criminal law by the lawmaker of the Islamic Republic. However, because in practice, this theory is facing problems and negative consequences such as shed the murdered blood with impunity, in 1392/2013 the lawmaker, following some jurists, passed a law that in cases where the retaliation is conditional upon the rejection of blood money differentials (Faḍil), the next of kin do not have the right to demand blood money. Nevertheless, there are still some practical problems of Taʻyīnī theory. The domination of the theory which says retaliation right being optional (Takhyīrī) in law is the only way to solve this problems. Assuming that evidences of this theory in Imami fiqh are rare and its principles are weak, the lawmaker has not made it the basis of the law. This study has tried to prove that the theory is not rare and its fiqhi evidences are convincing.

http://jostar-fiqh.maalem.ir/article_70131_2dd3e4279e2c175612e760c7466c73ed.pdf