On the Issue of Having Scholars Establish Punishments in the Time of Absence:

If this were proven, may the scholars establish punishments in the time of absence? The two sheikhs confirmed this based on this narration, “And I stop at this.”([1]) Nevertheless, he said afterwards in another issue after citing the words of the two sheikhs mentioned above, “It seems valid to me.”([2])

He said in Al-Mukhtalaf after citing the words of Al-Sheikh and Ibn Idris, “The closest to me is that the scholars may do it.”

To us: Failure to establish punishments leads to committing sins and to spreading evil. This is something that sharia requires to abandon.

Omar Ibn Handhala narrated citing Al-Sadek (P), “Look to those who narrate our hadith, those who examine what we allow and forbid, and those who know our rules, and be satisfied with their judgments. I have made them your ruler. If he issues a rule that is our judgment and that was not accepted, then that is an undermining of Allah’s rule and disobedience of us. Whomever disobeys us is disobedient to Allah. That is the same as worshiping another god with Allah.” There are also other traditions that support the rule of scholars. It is general and includes establishing punishments and other issues.

It is wondrous that Ibn Idris claimed unanimity in such while Al-Sheikh and other scholars disagreed with that.”([3])

Al-Mohaqeq Al-Ardabeeli commented on Al-Allama’s saying in “Al-Irshad”. He said, “The scholar who has the conditions needed for jurisprudence met in him may establish them, i.e. the punishments, and rule among people according to the faith of the righteous. The people must assist him in that matter.” He said about the first paragraph, “Perhaps the narration of Omar Ibn Handhala and Abi Khadija([4]) refer to their delegation to rule and making them rules. It seems to have included punishments.” He said on the need for people to assist in that, “Perhaps, it is not disputable as it supports doing what is good and it is included in establishing the commandment of the right.”([5])

Sheikh Kashif-Al-Ghata said, “The jurisprudent scholar (eligible ofreligious deduction) in the time of absence may establish them, i.e. the punishments and the penalties, and all practicing believers must enable and support him, and stop those who supplant him, if possible.”([6])

The writer of Al-Jawahersaid having reached evidence for the general rule of the scholar, “Then, there are no problems nor disagreements in the necessity for people to help them just like they would do with the Imam (P). That is because it is necessarily a religious policy that is not an individual’s act and because it is benevolence and piousness that we have been ordered to collaborate to achieve.”([7])

He commented after citing the narration of Al-Mohaqeq Al-Hulli for the words of the Two Sheikhs mentioned previously, “People must help them in such.” He said, “The Imam (P) must be assisted. That is what is rather famous. I do not find any disagreement at all, unless the apparent meaning of the words of Ibn Zahra and Ibn Idrisaccounts as being a disagreement among scholars, according to a superficial interpretation. We have not investigated it. Perhaps, the investigation would reveal otherwise. I have heard before what the second had unanimously agreed upon that the scholar is a ruler, then the unanimous agreement would be to this and not otherwise.”

In my opinion, this disagreement to the legitimacy of establishing the punishment at the time of absence is not relevant to the necessity we speak about. It was previously mentioned that the allegation of Ibn Idris indicates the opposite of what was cited by him. He said, “Then, there is probably a need for him [the ruler] to establish the punishments, Friday prayer, and judgment among people, if he or other Shia were secure from the damage of the ruler even if by accepting his headship and showing it on his behalf.”([8])