This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.
THE THREE WAYS A CALIPH MAY BE INVESTED WITH OFFICE
025.4 The caliphate may legally be effected (K: through three means, the first of which is):
(1) by an oath of fealty (H: like the one sworn by the prophetic Companions to Abu Bakr (Allah be well pleased with the)) which, according to the soundest position, is (H: legally binding if it is) the oath of those with discretionary power to enact or dissolve a pact (ahl ai-hail wa al-‘aqd) of the scholars, leaders, and notables able to attend (K: since the matter is accomplished through them, and all the people follow them. It is not a condition that all those with discretionary power to enact or dissolve a pact be present from every remote region, or that there be a particular number present, as the author’s words seem to imply, but rather, if discretionary power to enact or dissolve a pact exists in a single individual who is obeyed, his oath of fealty is sufficient.) (H: As for an oath of fealty from common people without discretionary power to enact or dissolve a pact, it is of no consequence) and they (H: those pledging fealty) must possess the qualifications necessary to be a witness (K: such as uprightness and so forth (def: 024.)) (Mughni al-muhtaj ila ma’rifa ma’ani alfaz al-Minhaj (y73) , 4.129-31, and Hawashi alShaykh ‘AM aI-Hamid al-Sharwani wa al-Shaykh Ahmad ibn Qasim al-‘Abbadi ‘ala Tuhfa al-muhtaj bi sharh al-Minhaj (y2), 9.74-76).
(Mawardi:) When those with power to enact or dissolve a pact meet to select the caliph, they examine the state of the available qualified candidates, giving precedence to the best of them and most fully qualified, whose leadership the public will readily accept and whose investiture people will not hesitate to recognise. When there is only one person whom the examiners’ reasoning leads them to select, they offer him the position. If he accepts, they swear an oath of fealty to him and the supreme leadership is thereby invested in him, the entire Islamic Community (Umma) being compelled to acknowledge fealty to him and submit in obedience to him. But if he refuses the caliphal office, not responding to their offer, he is not forced to comply-as investiture comes of acceptance and free choice, not compulsion and constraint-and they turn to another qualified candidate (al-Ahkam al-sultaniyya wa al-wilayat al-diniyya (y87), 7-8);
(2) (Nawawi:) and (H: the second means (K: through which it may be effected is)) by the caliph appointing a successor (H: meaning someone after him, even if it be his descendant or ancestor, for Abu Bakr appointed ‘Umar (Allah be well pleased with them) as his successor, and scholarly consensus (def: b7) was effected in recognizing its legal validity. This type of investiture consists of the caliph appointing a successor while still alive, to succeed him after death. Though actually his successor during his life, the successor’s disposal of affairs is suspended until the caliph dies). If the caliph appoints a group to select a successor from among themselves, it is as if he had appointed a successor (K: though the successor is not yet identified) (H: resembling an appointment in it being legally binding and obligatory to accept the outcome of their choice) and they choose one of their number (K: after the caliph’s death, investing the person they select with the caliphate) (H: because ‘Umar appointed a committee of six to choose his successor from among themselves:
‘Ali, ‘Uthman, Zubayr, ‘Abd ai-Rahman ibn ‘AwL Sa’d ibn Abi Waqqas. and Talha, and after his death they agreed upon ‘Uthman, (Allah be well pleased with them));
(3) and (H: the third means is) through seizure of power by an individual possessing the qualifications of a caliph (H: meaning by force, since the interests of the whole might be realized through such a takeover, this being if the caliph has died, or has himself obtained office through seizure of power, i.e. when he lacks some of the necessary qualifications.) (S: As for when the office is wrested from a living caliph, then if he himself became caliph through seizure of power, the caliphate of his deposer is legally valid. But if he became caliph through an oath’ of fealty (def: 025.4(1)) or having been appointed as the previous caliph’s successor (def: 025.4(2)), then the deposer’s caliphate is not legally valid). A takeover is also legally valid, according to the soundest position, by someone lacking moral rectitude (dis: o25.3(i)) or knowledge of Sacred Law (025.3(f)) (K: meaning the caliphate of a person lacking either condition is legally valid when the other conditions exist) (H: as is the takeover of someone lacking other qualifications, even if he does not possess any of them (S: besides Islam, for if a non-Muslim seizes the caliphate, it is not legally binding, and so too, according to most scholars, with someone who makes reprehensible innovations, as previously mentioned (dis: 025.3(a))). The caliphate of someone who seizes power is considered valid, even though his act of usurpation is disobedience, in view of the danger from the anarchy and strife that would otherwise ensue).