Rethinking the Payment of Excess Diyya in Intentional Murder without the Killer's Consent

Abstract

The legislator's approach in all regulations related to intentional murder in the Islamic Penal Code has been that the right of retaliation for the heirs of the victim is a definitive right, and receiving Diyya (blood money) is only possible with the consent of the killer. Although the choice and acceptance of the definitive view was due to its popularity, its acceptance led to the abuse of some murderers in some cases of murder, such as the execution of retribution in cases of paying excess Diyya, and the waste of the victim's blood. These reasons led to a change in the position of the legislator in the 1392 Penal Code. In this change of approach, the definitive theory was accepted as a principle in intentional murder, and to solve practical problems in cases where the retributionof the killer was conditional on the payment of excess Diyya by the heirs, the optional theory was accepted. This is because sometimes the heirs were not able to pay the excess Diyya, and the killer was not willing to compromise. Since according to the definitive view, it is not possible to receive Diyya without the consent of the killer, the blood of the victim was at risk of being wasted. Now, the legislator has been criticized for accepting the optional view and following the less well-known opinion and basing it on it. This research has concluded that adopting a dual view based on the narrations and the rule of "La Yabtol" is free from any difficulty in order to prevent the waste of Muslim blood.

Keywords

• diyya
• retribution
• excess diyya
• killer's consent
• optional theory
• definitive theory