Review of theory of determination incumbency of retaliation in murder and comparing with theory of selection in shi’ite and sunni jurisprudence

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Abstract

On the punishment of murder and limitations of powers of blood heirs in exerting of it , there is disagreement among the Islamic sectarian jurists . The well-known viewpoint in the shi’ite jurisprudence is that the punishment of murder initially and essentially is retaliation, and taking the blood- money requires mutual consent between blood heir and murder. This viewpoint is ,for some, appropriate to the shi’ite school and is claimed that they all agree with it, is known as theory of determination incumbency of retaliation. On the contrary, some jurists believe that blood heir has empowered between the retaliation and taking the blood-money, and he can choose one of them. This theory is also called “theory of selection”. This paper has concerned to criticism and investigation of scientific and jurisprudential principles of these theories in the shi’ite and sunni jurisprudence, and has concluded that theory of determination incumbency of retaliation on the basis of weakness of theoretical principles, on the one hand , and its bad consequences doesn’t enjoy from scientific and practical validity. But theory of selection is based on the firm theoretical backing , and it can better provide the rights of society and blood heirs. Also because of having preferences such as conforming with principle of precaution , consistent with Quranic verses and cause of descent of these verses , it is preceding to the theory of determination incumbency of retaliation.

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Journal of Studies in Islamic Law & Jurisprudence
Volume 5, Issue 9 - Serial Number 9
November 2013
Pages 67-86

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