چکیده:
At the time of deliberate murder, what can be deduced from the Quranic verses and Islamic hadiths, as well as ijma’[1], is that qisas-e nafs is a right for the owliya’-e dam[2]. In Islamic fiqh, some conditions have been considered for the realization of the rights of the victim. Yet, a question raises here that if there is any possibility of tab’eiz in qisas-e nafs, so that the valiyy-e dam retaliates partially; i.e., he or she retaliates some part of qisas, or in other words does not take the life of the murderer (i.e., total retaliation); but, in return, by implementing retaliation partially (for instance by cutting one organ like the leg of the murderer) he or she forgives the murderer not to go under capital punishment, or is ready to compromises under some certain conditions. This is an issue that has not been directly mentioned in the Islamic texts and narrations, nor in the jurists’ opinions of various Islamic schools. According to one view among contemporary foqaha[3] in qisas-e nafs, tab’eiz is by no means acceptable since soul is per se a single entity by essence that after the creation of the body organs, the soul has been breathed into them and such soul is not like the body that has independent components or organs. However, relying on the principles, rules and reasons governing the issue of qisas, including the right of qisas, compromisability of qisas, the necessity of saving one’s life, advisability of forgiveness, inclusion of the principle of choosing the lesser of the two evils, etc. one can claim that qisas is a right, and since one can forgive his/her right of qisas completely, he /she can also forgive some parts of his/her right of qisas, or the right of qisas can be waived by the agreement of the parties. To conclude, it seems that one cannot say that there is no possibility of tab’eiz in qisas-e nafs, and owliya’-e dam can be satisfied through compromise with less amount of punishment than blood vengeance, or execution as capital punishment.
[1]. consensus of foqaha
[2]. the avengers of blood; Plural of valiyy-e dam (the avenger of blood)
[3]. Plural of fqih (Islamic jurist); experts in Islamic jurisprudence; jurists
خلاصه ماشینی:
This is an issue that has not been directly addressed in texts, traditions, or the opinions of jurists of Islamic schools of thought in the past; according to one view among contemporary jurists, discrimination cannot be applied to Qisas al-Nafs because the soul is an inherently single existence into which the spirit is breathed after the creation of the limbs is complete, and it is not like the body which possesses independent organs; however, on the other hand, by relying on the foundations, rules, and arguments governing the issue of Qisas, such as the rightness of Qisas, its compatibility with settlement, the obligation to preserve life, the recommendation of pardon, the divisible nature of Qisas, the applicability of the rule of warding off the greater of two evils, and the applicability of the rule of combining as much as possible, it can be said that Qisas is a right, and just as one can waive the entire right of Qisas, one can also, with the agreement of both parties, waive part of the right of Qisas.
Of course, in jurisprudential expressions, discrimination in Qisas al-Nafs has not been explicitly stated with this exact phrase, but its implication has been raised implicitly in their expressions; for example, Allamah al-Hilli in Tahrir al-Ahkam says: «ليس له أن يقتصّ في الموضحة بالسّمحاق و يأخذ دية الزائد، لإمكان القصاص في الجناية و لو اتّفقا على ذلك جاز» meaning the next of kin cannot perform Qisas for a modhiha wound to the extent of samhaq, which is less than it, and take diya for the remainder, because the possibility of Qisas exists unless the two parties agree, in which case this matter becomes permissible (Allamah al-Hilli, Vol. 5, p.
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