Actually...

Actually, among the early Imamites, the theologian-judges (hukkam/qudat al-share) were named directly by the imams; some of the imams’ remarks regarding the difficulty of just jurisdiction 705 appear to have led Imamite doctors to wonder whether, in the absence of the imam, a religious judge, ,all the more likely to make judgment errors since he is not designated by the infallible person of the imam, could exercise such a responsibility without compromising both the Law and religion.

The number of works written from the Safavid period on against this argumentation encourages us to think that it was effectively used by Imamites in earlier times.

706 Imamite law divides legal punishments into two categories: 707 there are first of all those punishments instituted by the Qur’an and whose application is designated by the expression “God’s right” (haqq Allah); next, there are the punishments applied to errors not foreseen by the Sacred Text and whose commission is called “man’s right” (haqq al-nas).

Since the imam is the only person with the ability to apply Qur’anic precepts to individual cases appropriately, the practice of “God’s right” can be carried out only by Him, or by the person specifically designated by Him. “Man’s right,” on the other hand, can be carried out by an individual whose virtue and religious knowledge are recognized by everyone.

The final part of al-Murtada’s treatise, Risalat al-ghayba, summarizes and illustrates quite well this somewhat discomforting and ambiguous situation that we are examining. 708 The somewhat stilted language of the text is from A. Sachedina’ s translation: The doctrine of the hudad [legal punishment] during the ghayba is clear.

It is like this that if [the hadd] was to be implemented on a person, if the Imam appears and if that person is still alive and if it is proved on him by imputation and confession of having been committed by him, the Imam will impose the legal punishment on him. But if the punishment was not implemented because of his having died, the sin is on those who have frightened the Imam and forced him to go into ghayba.

The Shari’ah does not get abrogated in the execution of the hudad, because abrogation is at that time when there is a possibility of implementing the punishment and when obstacles preventing its enforcement have been removed. But under the condition we have mentioned, it does not get abrogated.