الوضع الليلي
2:45:19 
2023-10-31 
1726
The two litigants may be Muslims, or Jews or Christians, or of differing religions. If the two litigants are Muslims, the judge will rule between them only in accordance with Islam. If they are Jews or Christians, then the judge has the choice of ruling between them according to Islam, or referring them to special courts of their religious communities so that they may be judged according to them. Allah, the Exalted, says:
"If they come to thee, judge thou between them, or turn away from them; if thou turnest away from them, they will hurt thee nothing; and if thou judgest, judge justly between them; Allah loves the just." (5:42)
This noble verse expressly suggests the choice between the two alternatives, and it is not contradicted by the literal meaning (zahir) of another text stipulating judgement between them in accordance with Islam, because, firstly, an express text (nass) enjoys precedence over the literal meaning (zahir) and also because the choice between the two alternatives is also in accordance with Islam. Thus there is no room for thinking that this verse is abrogated by the following one:
"So judge between them according to what Allah has sent down, and do not follow their caprices." (5:48)
There is no contradiction between the nass allowing choice and the zahir specifying judgement in accordance with Islam. In addition, the choice has also been revealed by Allah, the Exalted. As regards the elaboration of the opinion which says that when the two litigants are from different religious communities, it is permissible for a Muslim judge to rule according to their laws, Imam 'Ali, peace be upon him, "Were the cushion folded for me, I would judge between the people of the Injil in accordance with their Injil...". Details on the topic can be found in legal works.
Some of our Imami legists 1 have supported the necessity of ruling between the two parties in accordance with Islam, since referring them back to one of the religious communities would cause fitnah. Our teacher, al-'Imam al-Khumayni, has ruled that if a dhimmi man committed adultery with a dhimmi woman, or if one dhimmi committed sodomy with another, the Islamic punishment (hadd) should be enforced.
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