And whoever said that the Imam has the choice in judging between them (the People of the Book), and that if he judges, he judges by what Allah, the Mighty and Majestic, has revealed; and whoever said that it is obligatory upon him to judge between them and he has no choice (not to judge).
Imam al-Shafi'i (may Allah have mercy on him) said: "Allah, the Mighty and Majestic, said to His Prophet (peace and blessings be upon him) concerning the People of the Book: 'So if they come to you, judge between them or turn away from them.' [Surah al-Ma'idah: 42] So in this verse, and Allah knows best, there is a clarification that Allah Almighty gave His Prophet (peace and blessings be upon him) the choice to judge between them or to turn away from them, and made it binding upon him (peace and blessings be upon him) that if he judges, he judges between them with justice."
He (further) said: "And I heard one of the people of knowledge with whom I am satisfied say, concerning the saying of Allah, the Mighty and Majestic, 'And judge between them by what Allah has revealed' [Surah al-Ma'idah: 49]: (it means) if you judge, (then judge by it); it is not a binding command that you (must) judge."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / Q17114
Ibrahim and al-Sha'bi (may Allah have mercy on them both) said: When non-Muslims bring their case to the Muslim rulers, then if they wish they may judge, and if they do not wish they may not; and if they judge, they judge according to the ruling Allah has revealed.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17114
Ibrahim al-Taymi (may Allah have mercy on him) said, concerning the saying of Allah Almighty, "Then judge between them with justice" [Surah al-Ma'idah: 42]: (It means) the ruling of stoning.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17115
Al-Hasan (may Allah have mercy on him) said: Leave the non-Muslims and their rulers alone; if they bring their case to you, then judge according to your Qur'an.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17116
This has already passed under number 16930.
At the end of the hadith, add this: Then Allah revealed this verse: "O Messenger, let them not grieve you who hasten into disbelief" [Surah al-Ma'idah: 41]. They said: Go to Muhammad (peace and blessings be upon him); if he gives you the ruling of blackening the face and flogging, accept it, and if he says stoning, leave it. So these verses were revealed about them: "And whoever does not judge by what Allah has revealed, then it is they who are the disbelievers" [Surah al-Ma'idah: 44], "And whoever does not judge by what Allah has revealed, then it is they who are the wrongdoers" [Surah al-Ma'idah: 45] and "And whoever does not judge by what Allah has revealed, then it is they who are the defiantly disobedient" [Surah al-Ma'idah: 47]; and he said: All of these are about the disbelievers.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17118
Sayyiduna Abu Hurayrah (may Allah be pleased with him) said: When the Prophet (peace and blessings be upon him) came to Madinah, all the Jews gathered in the Bayt al-Midras, and a married man and woman from among them had committed adultery. They said: "Take these two to Muhammad (peace and blessings be upon him) (and see) what he rules. If he orders you that their faces be blackened, that they be seated on a donkey and flogged, then he is a king; accept what he says. And if he orders you to stone them, then leave what he says." When they came to the Prophet (peace and blessings be upon him) and told him that the two had committed adultery while married, and said, "You give the ruling," the Prophet (peace and blessings be upon him) went to the Bayt al-Midras and said to the people: "Bring out your most learned scholars." So they brought out Abdullah bin Suriya al-A'war and said: "This is our scholar." A man from Banu Qurayzah reported that they brought out, along with Ibn Suriya, Abu Yasir bin Akhtab and Wahb bin Yahudha, and said: "These are our scholars." When they differed among themselves, they left the matter to Ibn Suriya and said: "He is the most learned of the Torah." So he (peace and blessings be upon him) took Ibn Suriya aside, and he was a young man. He (peace and blessings be upon him) pressed him on the question, and, adjuring him by Allah and reminding him of Allah's favours upon the Children of Israel, asked him: "Is there not stoning in the Torah for the married adulterer?" He said: "By Allah, yes, there is. But, O Abu al-Qasim, they know that you are a Prophet who has been sent, but they envy you." So the Prophet (peace and blessings be upon him) went out and had them stoned near the door of the mosque of Banu Ghanm bin Malik. After that Ibn Suriya disbelieved, so Allah Almighty revealed this verse: from "O Messenger, let them not grieve you who hasten into disbelief" up to "who have not come to you" [Surah al-Ma'idah: 41], meaning those who did not come to you, who sent (others) and stayed behind themselves, and who ordered the people with what they had not been ordered, that is, they distorted the rulings; and they would say: If he orders you with the tajbiyah, accept it, and if he orders you with stoning, leave it.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17119
Muhammad bin Abi Bakr (may Allah have mercy on him) wrote to Sayyiduna Ali (may Allah be pleased with him) that a Muslim had committed adultery with a Christian woman. He replied to him: Establish the prescribed punishment on the Muslim, and return the woman to the people of her religion.
Imam al-Shafi'i (may Allah have mercy on him) said: If this is established, then it shows that he has the choice to judge or not to judge.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17121
Bajalah said: I was the scribe of Jaz' bin Mu'awiyah, the paternal uncle of al-Ahnaf bin Qays. A letter from Sayyiduna Umar (may Allah be pleased with him) came to us one year before his death, in which he had written: Kill every sorcerer, male and female; separate every (spouse who is a) mahram among the Magians; and forbid them from zamzamah (murmuring at meals). So we killed three sorcerers, and among the Magians we separated the mahram woman whom a mahram had married. He had a great deal of food prepared, laid the sword across his thigh and invited the Magians; they threw down silver equal to the load of one or two mules and ate without zamzamah. At first Sayyiduna Umar (may Allah be pleased with him) would not take the jizyah from the Magians, until Sayyiduna Abd al-Rahman bin Awf (may Allah be pleased with him) told him that the Prophet (peace and blessings be upon him) "had taken the jizyah from the Magians of Hajar."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17122
Imam al-Shafi'i (may Allah have mercy on him) said: In this (chain) Bajalah is unknown (majhul), and we also do not know that Jaz' bin Mu'awiyah was a governor of Sayyiduna Umar (may Allah be pleased with him); and we also do not know of any ruling that he (peace and blessings be upon him) gave concerning them other than the ruling of stoning the Jews, nor is anything like that found from his Companions (may Allah be pleased with them) after him (peace and blessings be upon him). Likewise, Imam al-Shafi'i (may Allah have mercy on him) said that when a case concerning one of the prescribed punishments of Allah comes before an Imam, he has no choice whether to judge or not, but must establish the prescribed punishment; and he took as evidence: "Until they give the jizyah willingly while they are humbled" [Surah al-Tawbah: 29], for the very meaning of being humbled (saghar) is that the ruling of Islam is enforced upon them. Then he says that the hadith of Bajalah is connected and established, and that Bajalah was, in the time of Sayyiduna Umar (may Allah be pleased with him), a scribe for his governors. So it appears that when Imam al-Shafi'i (may Allah have mercy on him) wrote the Book of Prescribed Punishments he did not know about Bajalah, and when he wrote the Book of Jizyah he had become acquainted with his condition. Bukhari and Muslim also differed about the hadith of Bajalah: Imam Muslim (may Allah have mercy on him) did not take its narration, and Imam Bukhari (may Allah have mercy on him) took it.
The report of Sayyiduna Ali (may Allah be pleased with him) is mursal, and Qabus bin Mukhariq is not used as evidence.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17123
Awf al-A'rabi said: Umar bin Abd al-Aziz (may Allah have mercy on him) wrote to Adi bin Artah: Ask al-Hasan bin Abi al-Hasan what prevented the Imams before us from separating the Magians from (the marriages with) their women of close kinship? So Adi asked al-Hasan, and he replied that the Prophet (peace and blessings be upon him) had taken the jizyah from the Magians of Bahrain and allowed them to remain upon their religion, and the governor of the Prophet (peace and blessings be upon him) over Bahrain was al-Ala' bin al-Hadrami (may Allah be pleased with him); and after the Prophet (peace and blessings be upon him), Abu Bakr, Umar and Uthman (may Allah be pleased with them) also kept them in the same way.
The Shaykh said: This indicates that when they bring their case to us, we then judge according to the Qur'an; and a report is transmitted from Sayyiduna Ibn Abbas (may Allah be pleased with them both) about the abrogation of the verse of choice.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17124
Sayyiduna Abdullah bin Abbas (may Allah be pleased with them both) said: Two verses of Surah al-Ma'idah were abrogated: one is the verse of the Qala'id (garlanded sacrificial animals), and the other is "So judge between them or turn away from them" [Surah al-Ma'idah: 42], in which the Prophet (peace and blessings be upon him) had been given the choice: if he wished he would judge in it, and if he wished he would not, and would return them to their own rulers. After that this verse was revealed: "And judge between them by what Allah has revealed and do not follow their desires" [Surah al-Ma'idah: 49], so the Prophet (peace and blessings be upon him) was commanded to judge according to the Qur'an.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17125
Ikrimah (may Allah have mercy on him) said: "So if they come to you, judge between them or turn away from them" [Surah al-Ma'idah: 42] — this verse was abrogated by this verse: "And judge between them by what Allah has revealed and do not follow their desires" [Surah al-Ma'idah: 49].
Hadith Referenceالسنن الكبرى للبيهقي / كتاب الحدود / 17126