As for those who reject analogy, may they be appointed to the judgeship? I say: if they reject it, follow the apparent meaning of the text, adopt the opinions of their predecessors concerning matters for which no text has been transmitted, abandon independent legal reasoning, and turn away from reflection and deduction, then it is not permissible to appoint them as judges, because they lack the means of arriving at legal rulings.
This is the apparent import of Aḥmad’s statement, as related by Bakr ibn Muḥammad ibn al-Ḥakam, concerning the imam and the judge when a matter affecting the Muslims is brought before him: the imam and judge must bring people together to consider it, and apply analogy and comparison, for this is incumbent upon both the imam and the judge. This is indicated by what ʿUmar wrote to Shurayḥ: “Judge matters by analogy.”
If, however, someone rejects analogy but exercises independent legal reasoning in legal rulings, relying on the import of the wording and the implication of the discourse, as do the literalists, the prohibition would likewise be tenable, for the reason we have mentioned. This is the apparent import of Aḥmad’s statement, since he said, “He analogizes and compares.” Permission is also a possible view, because such people take into consideration clear meanings, even if they turn away from subtle analogy.
A person who follows Aḥmad’s school may appoint as judge someone who follows al-Shāfiʿī’s school, because a judge must exercise independent legal reasoning in his judgments, and he is not required, in novel cases and legal rulings, to follow the authority whose school he professes. Once his judgment has been implemented in a case, and a similar case subsequently arises, he must reconsider it through independent legal reasoning and rule according to what that reasoning leads him to, even if it conflicts with his previous judgment. ʿUmar, may Allah be pleased with him, ruled in the mushtarakah (shared-inheritance) case that sharing should take place in one year, but did not apply sharing in another. He was asked, “Did you not rule differently last year?” He replied, “That was our ruling then, and this is our ruling now.”
If the appointing authority follows a particular school and stipulates for the person to whom he appoints the judgeship that he may rule only according to that authority’s school, the condition is void. Does this invalidate the appointment? I say: if he did not make it a condition of the appointment, but expressed it in the form of a command and a prohibition—for example, saying to him, “I have appointed you judge, so rule according to Aḥmad’s school,” as a command, and “Do not rule according to Abū Ḥanīfa’s school,” as a prohibition—then the appointment is valid and the condition is defective. But if he expressed it as a condition in the appointment contract, saying, “I have appointed you judge on the condition that you do not rule according to Aḥmad’s school,” then this is a contract containing a defective condition. Does the contract become invalid? There are two reports on this, based on the ruling concerning a sale accompanied by a defective condition.