Is the execution of rights delegated via power of attorney permissible in the principal's absence?

General Chapter

Al-Mughni

Book of Agency

Book 19 · Issue 1 · Bab 1

Open in Qurani

Primary text

It is permissible to execute what one is authorized to do via power of attorney, both in the presence and absence of the principal (Al-Muwakkil). This is the position stated by Ahmad and is the established doctrine of Malik. The basis for this permission is that any action permissible for the agent to execute in the principal's presence is also permissible in the principal's absence, similar to punishments (Hudud) and other rights. The probability of the principal pardoning in their absence is considered remote and does not negate the execution. If the principal were to pardon, they would typically inform their agent. Furthermore, the actions of the Prophet's judges who implemented rulings and penalties (Hudud) in the provinces while being absent from the seat of authority are cited as precedent, even when potential revocation (of the judgment) existed. Precaution regarding executing Hudud by ensuring witnesses are present is not required, despite the possibility of them retracting their testimony or the judge's ruling changing.

Supporting text

Some scholars, including some Shafi'is and Abu Hanifa, hold that executing retribution (Qisas) and the punishment for slander (Hadd al-Qadhf) is not permissible in the absence of the principal. This view is supported by the reasoning that the principal might choose to pardon while absent, thus negating the right to execution. Since pardon is encouraged, the possibility exists that the principal might show mercy upon being present, leading to the suspension of the penalty.