Arbitration to Taghout !

 

By Sheikh Omar Bakri Muhammad (May Allah keep him protected and safe for His Deen and Ummah - Ameen)

Arbitration (referring to someone for judgement) is an act of worship in Islam. For this reason, it should only be done to Allah and His Messenger (SAW). However, there are some individuals who make excuses and attempt to justify arbitration to taghout (false gods or judges). The main excuses people use to justify arbitration to taghout will be refuted in this article, inshallah.
 

1. It is not arbitration; we are just going there to claim back our rights.

Some people claim that if we do not go to court and fight for our rights, we will lose them. Consequently, they claim that they are not arbitrating to taghout; rather, they are just going there to claim their rights.

It is important to bear in mind that a man will be accounted for every word he utters. Allah says:

“Not a word does he (or she) utter, but there is a watcher by him ready (to record it).” (Qaaf, 50:18)

“So whosoever does good equal to the weight of an atom (or a small ant), shall see it. And whosoever does evil equal to the weight of an atom (or a small ant), shall see it.” (Az-Zalzalah, 99:7—8)

So you will be accounted for everything that you do and say; in fact, a single word is enough to take you to Hell, and a single word could take you to Paradise. Allah’s Messenger (SAW) said: “Verily, a man will say a word which angers Allah while not being aware of its consequences. For this one word he will fall down in Hell for 70 years.” (Sunan Ibn Majah)

Today this word (statement) is, “It is not arbitration; we are just going there for our huqooq (rights).” This excuse is the most evil one as it is a way of trying to deceive the hukm (ruling). This false claim can be countered in the following ways:

• The reality of something does not change by changing its name

There is a principle in Islam which states:
The reality of things do not change by (changing) their names; so the outcome is taken by the meaning, not by the wording or structure.

For example, some people rename democracy and call it “shura” (consultation) instead. However, changing its name does not change its reality – in a democracy man is the source of legislation, not Allah.

Arbitration is considered ‘ibadah (worship) in Islam, just like salah, zakah, hajj, du’a, and so forth. And the meaning of tawheed is to single out Allah in our ‘ibadah (worship). So if tahaakum (arbitration) is worship, the only one who is worthy of it is Almighty Allah. Any person who offers a ritual act to other than Allah is a Mushrik. Arbitration is:

Returning back and responding to one who has the right to judge and issue rulings.

So at-tahaakum is to arbitrate to someone who has the right to remove or solve disputes. This “referring back” is tahaakum, which is a function of the limbs, not heart. Since it is an action of the limbs, the niyyah (intention) is irrelevant, because tahaakum (going to the court) is a function of the limbs, not heart.

Some individuals claim that it can only be called tahaakum if a person’s niyyah was to go there and arbitrate, believing that he/she is like or better than Allah. This is false and is like saying sujud to someone cannot be shirk unless they believe that the one they are prostrating to is god. Sujud is a function of the limbs, ‘amal ul-jawaarih; therefore the niyyah is irrelevant.

Similarly, “ar-rujoo” (returning back) is a function of the limbs, not heart. So even if the intention in your heart is different, this doesn’t change the fact that you go by your limbs to arbitrate. Ibnu Qayyim (RH) said:

“And from the types of shirk is that of the mureed (student) to his sheikh, for it is shirk for the one prostrating and the one who is prostrated to. And what is strange is that they say, ‘This is not sujud; it is only putting the head between the feet of the sheikh, out of respect and modesty.’ If they call it that or don’t call it that, the reality of sujud is to place the head down before the one who is being prostrated to.” (Madaarij us-Saalikeen, v.1 p.374)

If it was a requirement that people must believe in the heart as well do the action, we couldn’t be able to call anyone mushrik.

• Seeking protection for one’s life is not arbitration to taghout

Another excuse people use to justify arbitrating to taghout is that they claim the Prophet (SAW) made tahaakum to al-Mut’im bin ‘Adee when he entered Makkah after leaving Ta’if. This is untrue. The Prophet (SAW) did not arbitrate to him; rather, he sought protection (himayah) before re-entering Makkah and took al-Mut’im bin ‘Adee as a bodyguard, even though he was a Mushrik. So those who try to use this scenario as an excuse to arbitrate to taghout do not understand the meaning of tahaakum.

At-Tahaakum is to return back and go to someone who settles disputes (nizaa’). Allah (SWT) says:

“O you who believe! Obey Allah and obey the Messenger (Muhammad SAW), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger (SAW), if you believe in Allah and in the Last Day. That is better and more suitable for final determination.” (An-Nisa’, 4:59)
 

In this verse Allah tells us that if there is a dispute (nizaa’) between two parties, in any matter, it must be referred back to Allah and His Messenger “if you are believers”. Therefore, if a dispute happens between two individuals and they go to someone to judge between them in the matter, if the arbiter does not judge by the Sharia this “returning back” is kufr and shirk akbar. Arbitrating to other than Allah is arbitrating to taghout, whether it’s referring to idols, jinn, angels, kufr laws and constitutions, all of this is shirk akbar.

Seeking protection for one’s life is not arbitration (tahaakum). What the Prophet (SAW) did was called seeking protection, not arbitration. In fact Abu Bakr (RA) did the same with Ibnu ad-Dughunnah, who was also a mushrik. Moreover, the Sahaabah entered into protection of an-Najashi when they fled to Abyssinia. All of these are examples of seeking protection and asylum, not arbitration to taghout.

• Hilf ul-Fudul

Another incident they try to refer to is Hilf ul-Fudul. This was an agreement conducted in the house of Ibnu Jad’aan in the time of jahiliyyah (pre-Islam). Ibnu Jad’aan called the people and said to them, “You cannot be so disunited, we are Arabs and we respect our guests, we do not kill them; people come to perform hajj and we cannot allow people to kill them before they reach here.” So the tribes agreed that whenever people come to perform hajj they would offer protection and security to the pilgrims. So this agreement was about offering safety to the pilgrims. It is reported that the Prophet (SAW) later said, “If I were invited to it (something like Hilf ul-Fudul) after Islam, I would take part in it.”

So all the tribes that the pilgrims would have to go past on their way to Makkah were contacted and an agreement was reached, not to allow any harm to reach the pilgrims. This clearly was not arbitration. Moreover, those who took part in Hilf ul-Fudul were not tawaagheet, rabbis, priests or judges, etc. Rather they were the heads of tribes who could provide security. People did not arbitrate to them; they arbitrated to judges, rabbis and priests, such as Ka’b bin al-Ashraf, an individual from Juhainah, and Dar un-Nadwah.

So Hilf ul-Fudul was about “nusrat ul-mazloom,” helping the oppressed, and “himayat ud-da’eef,” protecting the poor and weak. This incident was also known as Hilf ul-Mutayyibeen, and Allah’s Messenger (SAW) said about it:

“I witnessed Hilf ul-Mutayyibeen with my uncles while I was young; I would not break it (the agreement) even for red cattle.” (Ahmad, 1567)

• If they are just and fair, it is allowed to arbitrate to them

Some people claim that it is not allowed to arbitrate if the arbiter is not just and takes bribes, like Ka’b bin al-Ashraf and soothsayers in the past. They claim that it is allowed to go to the British courts, for example, because they are just, whereas in other countries they are not just.

This is an invalid argument because when Allah ordered us to reject taghout it was not because they were fair or unfair, or because they take bribes or don’t take bribes. Rather, Allah ordered us to declare kufr in them because they are taghout. No one can be a Muslim unless they declare kufr in taghout, and this has to be done by keeping away from him. And the one who arbitrates to taghout did not declare kufr in taghout. It’s that simple. Allah did not tell us to arbitrate in some issues but not in other issues.

Usually when there is a dispute between a husband and wife they will take it to someone respected and wise, such as a sheikh. But to take the matter to court where they judge by kufr law is arbitration to taghout.

The only permit one has to arbitrate to taghout is if he is certain he will face torture or death – in this case he is allowed to go, but only if he is certain. The proof for this is found in the incident concerning ‘Ammar bin Yasir (RA), who used this permit (to do kufr) while he was being tortured.

Duress is subjective from person to person. Some fuqaha’ (jurists) say that one can take the permit only after losing organ, a bone is broken, or when one’s mouth becomes dry (out of fear). But every individual has a different pain threshold. Some individuals are strong and can take several beatings and lashes, whereas other individuals can only take a hit or two before the pain becomes unbearable.

If you are arrested and put on trial you are eligible to take the permit. If you go by your free will and initiate it, rather than being taken by the authorities, you do not have the permit because there is no duress.

2. The verse in the Qur’an related to arbitration to taghout applies to those who do not accept the hukm (ruling) of Allah and His Messenger (SAW); however, although we arbitrate to taghout we do not reject the hukm of Allah and His Messenger (SAW).

Allah says: “Have you seen those (hypocrites) who claim that they believe in that which has been sent down to you, and that which was sent down before you, and they wish to go for judgement (in their disputes) to the Taghout (false judges, etc.) while they have been ordered to reject them. But Shaitan (Satan) wishes to lead them far astray.” (An-Nisa’, 4:60)

Some people claim that this verse applies to those who do not accept the hukm of Allah and His Messenger (SAW); therefore, it is allowed to arbitrate to taghout so long as you accept the hukm of Allah. They say that the indication for this is in the wording, “yureedoona,” which means they intended and had the iraadah (will) to go. This iraadah, they say, is a shart (prerequisite condition) for kufr.

They also cite the circumstance concerning the revelation of this verse to justify this claim, which was as follows: Two men, a Jew and a Munafiq, had a dispute. The Jew wanted to go to Muhammad (SAW) because he knew he was just did not take bribes, whereas the Munafiq wanted to arbitrate to Ka’b bin al-Ashraf, but the Jew rejected because he knew that Ka’b would take bribes, and the Jew did not want to pay any money. The Jew said, “Let’s go to Muhammad.” The said, Munafiq said, “We will go to Ka’b.” Allah (SWT) then revealed the above verse.

Firstly: There is no condition, or shart, laid down in this verse. Rather it is only a description of what took place (wasf ul-haal). In other words, this description is not a condition; it is like saying, “So-and-so wanted to go somewhere.”

Secondly: They claim that they arbitrate but don’t want to. How can this be the case when there is no action without iraadah, will? There is a well-known principle in Usool ul-Fiqh which states:
Any action coupled with free will is a choice; and any action without free will is coercion (done under duress).

So those who say we went but didn’t want to go are murji’ah (i.e. they separate Iman from actions). In Islam we judge the action. One cannot say, “I went to the nightclub to give da’wah,” as if there is no other place in the world to give da’wah. The action is forbidden regardless of the intention.

Every iraadah is not necessarily joined with action – sometimes you may have the will to do something but are unable to do it. However, when it comes to actions, there is no action without iraadah, except under duress.

Thirdly: If you look at the ayah, Allah says, “Have you seen…” therefore it’s an issue to do with the action, not the intention. Allah called them liars and dispraised them; so the action was the issue, not what they intended. In fact, both the action and what they intended were both condemned. If someone did not intend to arbitrate why did they do it?

There is consensus that any ‘ibadah zaahirah (outward worship) cannot be done except to Allah, and if it is offered to anyone other than Allah it is shirk akbar. This is the case for any apparent act of worship, such as ruku’, sujud, tawaf, going to court (tahaakum), etc. So to arbitrate to taghout is major shirk, whether you like it or not, or whether you intend to do it or not. One only has the permit to do so under duress. Disliking it is not good enough, because dislike is not duress. Allah says:

“Whoever disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with Faith but such as open their breasts to disbelief, on them is wrath from Allah, and theirs will be a great torment.” (An-Nahl, 16:106)

Allah says, “illaa man ukriha (except the one who was compelled),” not, “kariha (disliked).” You cannot go to a nightclub and justify it by saying you disliked it in your heart; nor can you go to taghout and claim you dislike it. The only exception is ikraah (duress).

Fourthly: You cannot leave the clear-cut (muhkam) – which is the action – for the doubtful (mutashaabih) – which is the issue to do with intention. Allah cursed them because they arbitrated to taghout, so why do people try to cast doubts (shubuhah) on that which is muhkam? What is clear-cut and unquestionable is the fact that the act of arbitrating has been condemned.

When Allah commanded us to reject taghout it must be done by your heart and manifested in your actions. Allah ordered us to reject, so what we want or don’t want is irrelevant. If someone believes that worship to other than Allah is batil (falsehood) yet he does it repeatedly, he is a Kafir. Similarly, if someone rejects the idea of worshipping someone other than Allah but still does it he is a Kafir. So the claim is refuted by the action because:

Actions speak louder than words.

Ibn Taymiyyah (RH) said: “The one who says or does kufr has committed kufr, even if he does not mean to become Kafir, because no one intends to become Kafir except whom Allah wills.” (As-Saarim al-Maslool, p177)

So those who do kufr and shirk (such as tawaf around one’s grave or tahaakum to taghout) are Kafir. Did Fir’awn intend to be Kafir? He was Kafir because of what he said and did. The people of falsehood do not consider themselves to be people of falsehood – they believe they are upon the haq (truth).

“Verily, Allah! With Him (Alone) is the knowledge of the Hour, He sends down the rain, and knows that which is in the wombs. No person knows what he will earn tomorrow, and no person knows in what land he will die. Verily, Allah is All¬-Knower, All-¬Aware (of things).” (Luqman, 31:34)

Ibn Hajar (RH) said in al-Fath (12/315): “There are some Muslims who go out of the Deen without intending to go out of it, and without to choose a deen other the Deen of Islam.”

So the ulama of this Ummah never permitted a person to do a ritual act and then claim that he didn’t mean it. If someone goes to Hajj in ihram we call him muhrim regardless of his intention, because he is doing an act of worship. Furthermore, Allah says in the Qur’an:
“…We worship them only that they may bring us near to Allah.” (Az-Zumar, 39:3)
 

So the Mushrikeen denied having the intention to worship their idols. They claimed that their intention was only to get closer to Allah. This is just like how some individuals today claim that they are not arbitrating to taghout; they are just trying to claim their rights.

Imam as-San’aani (RH) said, in regards to those who claim to do actions but don’t mean to: “If you say: They are ignorant of the fact that they are Mushrikoon by what they do; I say, the fuqaha’ have stated clearly in the books of fiqh in the “chapter of apostasy” that the one who says the word of kufr has disbelieved, even if he didn’t mean it. And this is proof against them not understanding the reality of Islam and the essence of tawheed. In this case they are Kaafir in origin (not apostates).” (Tatheer-ul-I’tiqaad ‘an Adraan al-Ilhaad)

So the act of arbitrating alone is major shirk, regardless of one’s intention and whether or not someone accepts or rejects the hukm of Allah.

3. Arbitration to taghout is minor shirk, not major shirk.

This is the argument of someone who is stuck and has to admit that it is shirk but claims it is shirk asghar, not akbar. This argument is completely flawed because at-tahaakum is ‘ibadah, and therefore if it is done to anyone other than Allah it is major shirk. The one who claims it is only shirk asghar is confused.

Some individuals may argue that making an oath or swearing by Allah is considered shirk asghar even though it is an act of worship. We say that swearing by Allah is worship because it usually involves ta’zeem (glorification). The one who glorifies Allah is making ta’zeem, which is worship. So swearing by Allah is worship if it involves ta’zeem; if it does not involve ta’zeem it is considered minor shirk.

For example, when a person swears by their mother or father they are not making ta’zeem (glorification) the way they do with Allah; therefore, it is minor shirk. Because ta’zeem is a function of the heart, we cannot tell if someone is making ta’zeem or not in their oaths.

Furthermore, swearing by other than Allah wasn’t forbidden at the beginning. Allah’s Messenger (SAW) said:
“Verily, Allah forbids you to swear by your fathers. If one has to take an oath, he should swear by Allah or otherwise keep quiet.” (Saheeh ul-Bukhari, Kitab ul-Adab, Chapter 74, Hadeeth 6108)

So swearing by other than Allah wasn’t initially forbidden. However, arbitration to taghout (shirk) was forbidden from the very beginning of Islam.

4. If we arbitrate and the ruling contradicts the Sharia we will not accept it, but if it matches with the Sharia we will take it.

Another excuse some people use is that they claim they will only arbitrate if the outcome agrees with the Islamic rules, otherwise they will reject it. This is batil (false) for the following reason:

The aim does not justify the means. In Islam, we do not look to the result, or whether it’s fair or unfair, just or unjust, etc. Rather, we look to the action, and the reality here is that one is going to arbitrate to taghout. Allah (SWT) described those who desired to arbitrate to taghout as mushrikeen (disbelievers), so what if someone actually did it? Ka’b bin al-Ashraf was taghout not because he was “unjust”, rather it was because people took their disputes to him instead of Allah.

5. There is no Islamic state today which can protect and return our rights, therefore we are under compulsion.

Another excuse people use is that they say there is no Islamic state today, and therefore we are under compulsion and have no choice but to arbitrate to taghout.
Allah (SWT) says:
“That is because they loved and preferred the life of this world over that of the Hereafter. And Allah guides not the people who disbelieve.” (16:107)

A person may claim that they are under compulsion, but in reality they are favouring the dunya over the Akhirah. For the sake of claiming back their rights in this life, they are willing to commit kufr and shirk. Some people may do it for job, position, a house, etc., but they forget that the first objective of the Sharia is Hifz ud-Deen (preservation of Deen). Furthermore, Allah (SWT) says:
“Say: If your fathers, your sons, your brothers, your wives, your kindred, the wealth that you have gained, the commerce in which you fear a decline, and the dwellings in which you delight … are dearer to you than Allah and His Messenger, and striving hard and fighting in His Cause, then wait until Allah brings about His Decision (torment). And Allah guides not the people who are Al-Faasiqoon (the rebellious, disobedient to Allah).” (At-Tawbah, 9:24)
 

If none of these eight things can be used as an excuse to leave jihad, how can they be used as an excuse to leave Tawheed? Who is forcing you to arbitrate to taghout? And how can they claim to be under duress?

Duress and compulsion

Someone may ask what is duress? Allah (SWT) says:
“Whoever disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with Faith but such as open their breasts to disbelief, on them is wrath from Allah, and theirs will be a great torment.” (16:106)
 

This ayah was addressing ‘Ammar bin Yasir (RA), after the mushrikoon took his mother and father and tortured them. Sumayyah, ‘Ammar’s mother, was tied between two camels and stretched apart until Umayyah approached her and her husband with a spear and killed them both. They were the first to be killed in Islam.

As for ‘Ammar (RA), they lashed him, tortured him, and poured hot oil over his body. They put him in Bi’ru Maymoon (the Well of Maymoon) where he could not move due to the confined space. Every day the mushrikeen would ask him, “Are you ready to say what we want to hear (i.e. kufr)?” Every time he refused they would pour hot oil over his head.

It was only after he was severely tortured that ‘Ammar (RA) used the permit to say kufr. Therefore, torture is a prerequisite condition. Today, people claim they are under compulsion or duress while they are health and free.

So while ‘Ammar (RA) was being tortured in the Well of Maymoon he declared kufr (disbelief) in Muhammad, but in his heart he disliked it. After he was released he went straight to the Prophet (SAW), who asked him what had happened. ‘Ammar (RA) replied, “Something terrible, oh Messenger of Allah! They would not let me go until I defamed you and praised their gods.” Allah’s Messenger (SAW) replied, “And how do you find your heart?” ‘Ammar (RA) replied, “Full of Iman.” Allah’s Messenger (SAW) replied, “If they come back for you, do the same thing again.” (Sunan al-Bayhaqi)

So whoever faces a similar situation to ‘Ammar (RA) will have the permit to do kufr. However, you cannot compare what happened to ‘Ammar with the so-called “duress” of those who want arbitrate to taghout for their rights.

Imam Ahmad (RH) was asked to do what ‘Ammar did, while he was incarcerated. Imam Ahmad replied: “Verily, ‘Ammar was beaten! You haven’t been beaten, yet you have already retracted!” Imam Ahmad was eventually beaten but he still did not take the permit as he was the only one left who was speaking the haq.

Another way of looking at the issue of arbitration to taghout is: imagine someone takes your money and they say to you, “If you want your money back, you have to make tawaf and sujud to me!” What would you do in this situation? Imagine you really needed the money. Would it be allowed to commit major shirk just to claim back your money?

The only way that arbitration to taghout can be justified is while one is under duress, or he is being forced to go there by the authorities (against his will). If it is not under these circumstances we cannot see a permit.

But what is the ruling on threatening to take someone to court but you don’t really have the intention of doing so in your heart? To show this kind of intention is not allowed. If someone drinks alcohol he is sinful, but if he does it publicly he is making “jahr”, or publicising his sin, and this is kufr duna kufr (minor kufr). Also, Allah (SWT) says:
“Verily! As for those whom the angels take (in death) while they are wronging themselves (as they stayed among the disbelievers even though emigration was obligatory for them), they (angels) say (to them): “In what (condition) were you?” They reply: “We were weak and oppressed on earth.” They (angels) say: “Was not the earth of Allah spacious enough for you to emigrate therein?” Such men will find their abode in Hell – What an evil destination!” (An-Nisa’, 4:97)
 

Some Muslims stayed behind in Makkah and did not make hijrah to Madeenah, and they consequently came out fighting alongside the Quraysh during the Battle of Badr. The verse asks, “Fee maa kuntum (which state were you in)?” Or in other words, “Which side were you on: with the Mushrikeen or the Muslims?” The angels did not give them any excuses. This is because they chose to stay behind in Makkah (without a valid excuse) and were then forced to obey and support the Mushrikeen. So when people accept, for example, to be British citizens, obey them and ally with them, how can they be under any duress?

Those who come under the category of being under duress are those being persecuted or face being killed. In the beginning of Islam some Muslims had to flee Makkah for Abyssinia because Muslims were being persecuted and killed. They arrived at Abyssinia with no food or wealth.

The solution

Allah (SWT) says:
“Verily, those who have believed, and those who have emigrated (for Allah’s Religion) and have striven hard in the Way of Allah, all these hope for Allah’s Mercy. And Allah is Oft-Forgiving, Most-Merciful.” (Al-Baqarah, 2:218)

“Then, verily! Your Lord for those who emigrated after they had been put to trials and thereafter strove hard and fought (for the Cause of Allah) and were patient, verily, your Lord afterward is, Oft-Forgiving, Most Merciful.” (An-Nahl, 16:110)

“He who emigrates (from his home) in the Cause of Allah, will find on earth many dwelling places and plenty to live by. And whosoever leaves his home as an emigrant unto Allah and His Messenger, and death overtakes him, his reward is then surely incumbent upon Allah. And Allah is Ever Oft-¬Forgiving, Most Merciful.” (An-Nisa’, 4:100)

These verses state that you will find rizq (provisions) wherever you go. So if you find yourself in fitnah or duress you should move and go to a place where you will not be under duress. Imam al-Bukhari entitled one of the chapters in his Saheeh:

Chapter: Part of the Deen is to flee from fitan (trials).

And Allah’s Messenger (SAW) said:
“A time will come when the best property of a Muslim will be sheep, which he will take on the top of mountains and the places of rainfall (valleys), fleeing with his Deen from Fitan.” (Saheeh al-Bukhari, Book of Iman, Chapter 12, Hadeeth no. 19)
 

So one should either make hijrah or isolate oneself (if one has no strength) from the fitan. If this is not possible, Muslims must stand firm and carry da’wah, command the good and forbid the evil in effort to change their situation and bring about the Islamic state.

If people do not want to make hijrah or isolate themselves they can live together as a community and choose an ‘alim (scholar) from among them who will rule and judge by what Allah has revealed and they can work on building their strength. If we don’t have this vision we will end up becoming like those who live, die and are buried among the Kuffar.