چکیده:
Given the necessity of preventing the wasting of human blood, God inherently appoints the ruler as the guardian of someone who has no guardian. However, are all the powers that exist for the next of kin also established for the ruler? And can he, in the position of the next of kin, exercise them and consent to blood money (diya) instead of retaliation (qisas), or without it, or not? In this matter, there are two views: famous and non-famous; according to the famous view, the ruler, like other next of kin, can based on two 'Abi Walad' narrations, waive retaliation in exchange for blood money, but does not have the right to grant pardon without compensation. However, the second view holds that granting pardon without compensation is also permissible. In addition to explaining the two aforementioned views, this article also addresses the view of the Sunnis—which is consistent with the famous view—and the transitional legal view. Then, by contemplating the famous view and considering the narration that regards the Imam as the rational guardian of a person without heirs, as well as the result of combining narrations that on one hand consider blood money without heirs as part of the 'Anfal' (spoils) and on the other hand consider 'Anfal' as the right of the Imam, it strengthens the non-famous view.
خلاصه ماشینی:
In this matter, there are two views: famous and non-famous; according to the famous view, the ruler, like other next of kin, can waive retribution in exchange for receiving blood money based on two narrations of Abi Walad, but he does not have the right to grant a pardon without compensation.
The famous view: Permissibility of settlement via Diyah and impermissibility of pardoning without compensation The famous view of jurists is that the Imam or the ruler who takes the place of the next of kin can pardon retribution in exchange for Diyah, but this group is also divided into two categories: the first group, by mentioning the phrase "فان شاء قتل و ان شاء اخذ ديه" and similar expressions, rules the choice of the Imam between retribution and taking Diyah (Al-Muqni' /536; Al-Muqni'ah /743; Al-Kafi fi al-Fiqh /389; Al-Nihayah /672; Al-Muhadhdhab /162/2; Ghunyat al-Nuzu' /407; Tabsirat al-Muta'allimin /227; Masalik al-Afham /41/3; Majma' al-Fa'idah wa al-Burhan /472/14; Kashf al-Litham /362/9; Jawahir al-Kalam /43/39; Mabani Takmilat al-Minhaj /132/2; Fiqh al-Sadiq /347/26), and the second group explicitly states the right of the Imam or the ruler to settle via Diyah by adding the condition "مع التراضي" (with mutual consent) (Shara'i al-Islam /816/4; Al-Mukhtasar al-Nafi' /257; Tahrir al-Ahkam /277/2; Al-Muhadhdhab al-Bari' /355/4; Mustanad al-Shi'a /52/19).
Discussion and Examination of Famous and Non-Famous Views Regarding the issue under discussion, both groups believe that the Imam has the right to waive retribution and convert it into Diyah, because some jurists' expressions explicitly refer to this matter based on the idea that in intentional homicide, the Imam has the right to settle for Diyah (al-Nihayah /739; al-Muhadhdhab /2/162; al-Mukhtasar al-Nafi' /251; Tabsirat al-Muta'allimin /227; al-Muhadhdhab al-Bari' /4/335; Kashf al-Litham /11/446; Jawahir al-Kalam /43/335).
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