[Explanation in the light of Surah an-Nisa Ayah 59]
If we look at ayah 58 and the command to ‘judge between people with fairness’ along with the command to ‘obey those in authority’ in ayah 59, we can see a clear hint to the effect: If the Ameer, the authority in power, sticks to adl (justice), obedience to him is wajib (necessary); and should he forsake justice and promulgate laws against the Shariah, the ameer will not be obeyed as far as those laws are concerned. The Prophet sallAllahu aalyhi wa sallam has said (which means):
“There is no obedience to the created in the matter of disobedience to the Creator.”
Such obedience to the created making disobedience to the Creator is not permissible.
Another point which emerges from the statement: “… and that when you judge between men, you judge with justice….” [Ayah 58] is that a person who does not have the ability and the power to maintain equity and justice should not become a Qadi (judge), because “judging with fairness” is amanah, the great charge of the fulfillment of a trust obligation, something which cannot be guarded, defended and fulfilled by a weak and incapable person. Relevant to this is the case of Abu Dharr radhiAllahu anhu who had requested the Prophet sallAllahu aalyhi wa sallam that he may be appointed as the governor of some place in the Islamic state. In reply, he said:
“O Abu Dharr, you are weak and this is an office of trust, which may, on the Day of Resurrection, become the cause of disgrace and remorse, except for one who has fulfilled all his trust obligations, fully and duly (that is, he will be spared of that disgrace).” [Muslim, in Mazhari]
The Just Person is the Favorite Servant of Allah
There is a hadith in which the Prophet sallAllahu aalyhi wa sallam has been reported to have said,
“The just person is loved by Allah and he is the closest to Him, while the unjust person is cast far away from the mercy and grace of Allah.”
According to another hadith, the Prophet sallAllahu aalyhi wa sallam said to his Companions,
“Do you know who will be the first to go under the shade of Allah?” They said, “Allah and His Messenger know this best.” Then, he said, “These will be people who, when truth appears, hasten to accept it; and when asked, they spend their wealth; and when they judge (between people), they do it as fairly as they would have done for themselves.”
The Proof of Ijtihad and Qiyas
Finally, let us now refer to the statement
فَإِن تَنَازَعْتُمْ فِى شَىْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ
“Then, if you disagree in anything refer it to Allah and the Messenger….”
This ‘reverting back to Allah and the Messenger’ takes two forms:
Revert to ahkam, the code of commands as mandated in the Book of Allah and the Sunnah of the Messenger of Allah.
If the textually-mandated ahkam do not exist, the act of reverting back will be accomplished by analogical deduction (qiyas) as based on their precedents.
The words of the expression
Refer it to
are general, thus being inclusive of both forms.