Praise be to Allah.
Allaah has commanded us to refer matters to His judgement and to establish Sharee‘ah, and He has forbidden us to rule with anything else, as is clear from a number of aayaat in the Qur’aan, such as the aayaat in Soorat al-Maa’idah (5) which discuss ruling according to what Allaah has revealed, and mention the following topics:
The command to rule according to what Allaah has revealed: “And so judge between them by what Allaah has revealed . . .” [aayah 49]
Warning against ruling by other than what Allaah has revealed: “. . . and follow not their vain desires . . .” [aayah 49]
Warning against compromising on any detail of Sharee‘ah, no matter how small: “. . . but beware of them lest they turn you far away from some of that which Allaah has sent down to you . . .” [aayah 49]
Forbidding seeking the ruling of jaahiliyyah, as is expressed in the rhetorical question “Do they then seek the judgement of (the Days of) Ignorance?” [aayah 50]
The statement that nobody is better than Allaah to judge: “. . . and who is better in judgement than Allaah for a people who have firm Faith?” [aayah 50]
The statement that whoever does not judge according to what Allaah revealed is a kaafir, a zaalim (oppressor or wrongdoer) and a faasiq (sinner), as Allaah says: “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [aayah 44]; “. . . And whoever does not judge by that which Allaah has revealed, such are the zaalimoon (polytheists and wrongdoers)” [aayah 45]; “. . . And whoever does not judge by what Allaah has revealed (then) such (people) are the faasiqoon (rebellious or disobedient).” [aayah 47].
The statement that it is obligatory for the Muslims to judge according to what Allaah has revealed, even if those who seek their judgement are not Muslim, as Allaah says: “. . . And if you judge, judge with justice between them. . .” [aayah 42]
Judging or ruling according to other than what Allaah has revealed is contrary to faith and Tawheed, which are Allaah’s rights. It may be counted as kufr akbar (greater kufr) or kufr asghar (lesser kufr) according to circumstances. Kufr akbar will make a person no longer a Muslim in cases such as the following:
If he issues laws and regulations other than those revealed by Allaah, because the right to issue laws belongs to Allaah alone, Who has no partner, and whoever “competes” with Him in a matter which is His alone is a mushrik, because Allaah says: “Or have they partners with Allaah (false gods), who have instituted for them a religion which Allaah has not allowed?” [al-Shooraa 42:21]
If the one who rules by other than that which Allaah has revealed denies the right of Allaah and His Prophet to rule, as is mentioned in Ibn ‘Abbaas’s comment on the aayah:“. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon.” [al-Maa’idah 5:44]. Ibn ‘Abbaas said: “Whoever rejects what Allaah has revealed is a kaafir.”
If he prefers the rule of falsehood to the rule of Allaah, whether this is in absolute terms or just in a few matters. Allaah says: “Do they then seek the judgement of (the Days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith?” [al-Maa’idah 5:50]
If he regards the rule of Allaah and the rule of falsehood as equal. Allaah says: “. . . Then do not set up rivals unto Allaah (in worship) while you know (that He Alone has the right to be worshipped).” [al-Baqarah 2:22]
If he thinks that it is permissible to rule by something that contradicts the rule of Allaah and His Messenger, or he believes that it is not obligatory to rule according to what Allaah has revealed, or that the matter is optional. This is kufr which is contradictory to faith. Allaah revealed: “O Messenger! Let not those who hurry to fall into disbelief grieve you, of such who say: ‘We believe’ with their mouths but their hearts have no faith. And of the Jews are men who listen much and eagerly to lies - listen to others who have not come to you; they say, ‘If you are given this, take it, but if you are not given this, then beware!’ . . .” [al-Maa’idah 5:41]. He says: “Go to Muhammad (peace be upon him), and if he tells you that the ruling is lashes, accept it, but if he commands stoning, ignore what he says. Then Allaah revealed “. . . And whoever does not judge by what Allaah has revealed, such are the kaafiroon (disbelievers)” [al-Maa’idah 5:44].
If he does not rule according to what Allah has revealed out of stubbornness and arrogance, he is a kaafir and has left Islaam, even if he does not deny the rule of Allaah. Stubbornness and arrogance may mean negligence and turning away, as Allaah 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 Taaghoot (false judges, etc.) while they have been ordered to reject them. But Shaytaan wishes to lead them astray. And when it is said to them: ‘Come to what Allaah has sent down and to the Messenger,’ see they hypocrites turn away from you (Muhammad) with aversion.” [al-Nisaa’ 4:60-61]
Among the things that may be counted as ruling by other than that which Allaah revealed and kufr akbar is what Shaykh Muhammad ibn Ibraaheem said about man-made laws and ruling by them: “This is the worst, the most obvious and comprehensive opposition to sharee‘ah and rejection of Allaah’s laws. This is competing with Allaah and His Messenger, contradicting His laws in their preparation, support, structure, ruling and references.
The above is a summary of the things that may imply that ruling by other than that which Allah has revealed is a form of shirk akbar (major shirk):
(1) Ruling by other than that which Allaah has revealed.
(2) Denying the right of Allaah and His Messenger to rule.
(3) Preferring the rule of falsehood to the rule of Allaah, whether this is complete or only in a few matters.
(4) Regarding the rule of Allaah and the rule of falsehood as equal.
(5) Thinking that it is permissible to rule by something that contradicts what Allaah has revealed, or believing that ruling by what Allaah has revealed is not obligatory or is optional.
(6) Refusing to rule by what Allaah has revealed.
By examining this topic from different angels, it becomes clear that what is counted as kufr akbar is the following:
Abolishing sharee‘ah as the law governing a country, as Mustafa Kemal (“Ataturk”) did in Turkey, as he abolished the book Majallah al-Ahkaam al-‘Adliyyah which was based on the Hanafi madhhab, and replaced it with man-made laws.
Abolishing sharee‘ah courts.
Imposing man-made laws, such as Italian, French, German law, etc., to judge between the people, or mixing these laws and Sharee‘ah, as Genghis Khan did in his book al-Yaasiq, which combined laws from different sources; the ‘ulamaa’ (scholars) ruled that he was a kaafir.
Confining the role of sharee‘ah courts to so-called “civil” matters, such as marriage, divorce and inheritance.
Setting up non-sharee‘ah courts.
Discussing sharee‘ah in parliament and voting on it; this indicates that implementing sharee‘ah is conditional upon a majority vote.
Making sharee‘ah a secondary or main source, along with other sources of law. Even when they say that sharee‘ah is the primary source of legislation, this is still kufr akbar, because it means that they are allowing the adoption of laws from other sources too.
Stating in the clauses of legislation that reference may be made to international law, or stating in treaties that in the case of dispute, the matter may be referred to such-and-such non-Islamic court.
Criticizing sharee‘ah in public or in private, such as saying that it is rigid, incomplete or backward, or suggesting that it is incompatible with our times, or expressing admiration for non-Islamic laws.
As regards the question of when ruling by other than what Allaah revealed is kufr asghar, which does not exclude a person from the ummah of Islam:
the answer is that this may be the case when a ruler or judge passes judgement according to other than what Allaah revealed out of disobedience or on a whim, or as a favour to someone, or because he was bribed, and so on, although he believes that it is obligatory to judge according to what Allaah has revealed, and that what he has done is a sinful and haraam deed.
As regards the one who is governed by a non-Islamic law, if he refers to it out of choice, then he is a kaafir whose kufr akbar means that he has left Islaam. But if he has no choice but to refer to this law, and does so reluctantly, then he is not a kaafir, because if he had been able to resort to sharee‘ah, he would have done so, and he believes that this non-Islamic law is false.
And Allaah knows best. May Allaah bless our Prophet Muhammad.