The Jurisprudential and Legal Possibility of Discrimination in Retaliation

One of the emerging issues is discrimination in retaliation. Discrimination in retaliation means that the parties agree that instead of blood-vengeance, a limb of the criminal should be retaliated against, and in the retaliation in limb, the criminal and the victim should agree to a lesser amount of the crime committed for retaliation. For example, if the criminal cuts the hand of the victim from the elbow, it could be cut off from the wrist with the agreement of the criminal and the victim. Although the legislature acknowledged the legitimacy of discrimination in retaliation, the law is silent on retaliation. From the jurisprudential point of view, most contemporary jurists do not consider it permissible, but in the view of some jurists, it is not forbidden. While presenting different views, the author has provided several arguments on the permissibility of discrimination in retaliation and believes that assuming that discrimination in retaliation is a prescriptive sanctity, there is no positive sanctity. Even from the point of view of the jurists who do not allow discrimination in retaliation, if the parties agree on discrimination in retaliation and implement it, the right to retaliation will be revoked and due to the silence of the law, the court can rule on cancellation of retaliation based on Article 167 of the Constitution and referring to a valid jurisprudential ruling. It is also suggested that the legislature also accepts discrimination in retaliation as it has accepted discrimination in limb under the Article 390 of the Islamic Penal Code.