Explaining the Jurisprudential Evidence in the Theory of the Optionality of Retaliation Right

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.