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Issue 6/Volume 1

AL-QAWA'ID

THE PRECEPT OF ESTABLISHING THE PENAL CODE FOR ONE WHO HAS THE AUTHORITY TO GIVE A
JUDGMENT
(I.e. the Legal Authority in the Islamic Law)
(Qa'idah al-Iqamah al-Hudud ila man ilayhi al-Hukm)

It's Meaning: The meaning of the Precept is the application of the penal code - such as execution, cutting of the hand/finger(s) and whipping -, taking place during the era of the Occultation (al-Ghaybah), by the Legal Authority (al-Hakim al-Shar'iyy).1
In this regard, al-Sayyid Abu al-Qasim al-Khui has stated that; " it is apparently permissible for the Comprehensive Legal Authority (
al-Hakim al-Jami') possessing the necessary qualifications to apply (li al-shara'it) the penal code.2

At this point there are two claims:
The first: The permissibility of establishing the penal code for other than an Imam by the ruling government of that country (al-Hukumah) in a society without an Imam (fi al-Mujtami' li ghayr al-Imam)
The second: Specification of establishing [the penal code] for the Jurist - Legal Authority (Faqih ), i.e. al-Hakim al-Shar'iyy.

As for
The First claim/opinion, al-Sayyid Abu al-Qasim al-Khui' has stated that this permissibility was [well] known and popular amongst the scholars, without controversy except what has been attributed to said of Ibn Zohra and Ibn Idris, that authority  [for establishing the penal code] is only for the Imam or whom the Imam has appointed for that purpose, [however] this opinion is not established/substantiated.
What is apparent of Shaikh Abul Qasim Ja'far b. Hasan b. Yahya b. Saeed Hilli
, famous as al-Muhaqqiq al-Hilli, in the book al-Sharai' al-Islam, and of Hasan b. Yusuf b. Ali b. Mutahhar Hilli, renowned as al-'Allamah al-Hilli in some of his books, is suspension [regarding this matter], (i.e. they have chosen not to give an opinion).
The indications to what has been mentioned (i.e. the first opinon??) are two:

I: The establishment of the penal code is legislated for the general well being [of individuals and society], as a deterrent against corruption, spreading of immorality/inequity and oppression amongst the people.
Thus the specification of the application of the penal code to a particular era would be inconsistent with the cause of its legislation and the physical being of an Imam within a society is not influential in the criterion of its legislation.

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