the words of Ahmad and others. Thus, when no fully qualified candidate is available, the more beneficial and least harmful of two immoral men should be appointed; likewise, of two mere followers, the more upright and the more knowledgeable of the school he follows. It states in al-Furūʿ: “This is as he said”—that is, as the Shaykh said. The Shaykh spoke truly, may Allah have mercy on him. These ten conditions apply when they can be fulfilled; when they cannot, then the most suitable candidate, followed by the next most suitable, should be appointed.
This is indicated by the words of Allah, Exalted is He: “Allah does not burden any soul beyond its capacity.” [al-Baqarah 2:286] And Allah, Exalted is He, says: “So fear Allah as much as you are able.” [al-Taghābun 64:16] Thus, if we cannot find anyone possessing all these qualities, but find someone possessing some of them, we proceed according to what is possible.
Issues: Is it permissible to appoint proponents of religious innovation to the judiciary?
Proponents of religious innovation fall into two categories: those whose innovations constitute disbelief, in which case they lack the condition of Islam; and those whose innovations render them sinful, in which case they lack the condition of uprightness. If an innovation renders a person sinful, he must not be appointed, even to judge among the adherents of his own innovation. Every innovation that renders an independent legal reasoner a disbeliever renders a mere follower sinful.
If a man abandons the witr prayer, may he be appointed as a judge? Imam Ahmad, may Allah have mercy on him, said: “Whoever abandons witr is a man of bad character, whose testimony should not be accepted.” He said this because being negligent regarding witr indicates that he would be negligent regarding testimony; thus, he is disqualified due to a lack of trustworthiness.
May one who is fanatically devoted to his imam’s opinions be appointed as a judge? If there is someone capable of independent legal reasoning from the texts and acting upon the evidence, then one who is capable only of independent legal reasoning regarding the imams’ statements should not be appointed. Such a person is concerned with applying his imam’s views without giving consideration to the evidence. However, if no one capable of independent legal reasoning from the texts is available, then one capable of independent legal reasoning within the school may be appointed.