The Employment of Unqualified Judges and Scope of Their Powers

One of the jurisprudential challenges that has been considered and disputed by jurists since the past is the responsibility of judging by an unqualified judge in case of need and expediency. On the one hand, religious judgment has conditions and needs to be formed, and on the other hand, in case of the absence of a qualified judge, the social system becomes disturbed and chaotic due to the lack of consideration of hostilities and the lack of guarantee of implementation of rulings and laws. This paper, through examining the words of some jurists and the available evidences, on the one hand, emphasizes the principle of permissibility of judging of unqualified judges such as ijtihad and religious justice, on which the consistency of the principle of jurisprudence does not depend and, on the other hand, it emphasizes the authority limitations of this group of judges on hostilities, as well as the judgment and execution of those deterrent punishments on which the consistency of social order depends. The qualified jurist appoints and permits these judges. This new view is in line with the obligation to protect the system and the need to avoid chaos and it is considered as a social need. The need for case-by-case and partial solutions that have sometimes been proposed by some jurists and has no place in the macro management of society. As from this point of view, it is limited to the above-mentioned deterrent punishments.