Arbitration in Law

 
 
 
Arbitration in Law
 
 
 
 
 
by
 
 
 
 
Sheikh Muhammad bin Ibrahim bin Abdul-Latif Aal Al-Sheikh
 
Former Grand Mufti of Saudi Arabia
 
 
 
 
 
 
 
Foreword
 
Praise be to Allah, and peace and blessings be upon our master Muhammad, and on all his household and companions.  Almighty Allah raised Sheikh Muhammad bin Abdul Wahab (may Allah rest his soul) for the Community of his beloved Muhammad (pbuh) to enable it to distinguish Islam from shirk (associating partners with Allah) in order to reassert the truth and to lead all mankind as happened in the early days of Islam.  This community has fallen into the darkness of false traditions, which have accumulated over the development of time and which contradict the Sunnah (the way, words and actions of Prophet Muhammad).  The community’s conditions have changed for the worse, and it has been conquered and colonised by infidels politically, economically and culturally, as the Messenger of Allah (pbuh) said: ‘Other nations will call themselves upon you as eaters call themselves to a big dish.’
The Sheikh and his followers are still Allah’s whip with which He rectifies the Community.  Their last great herald was Sheikh Muhammad bin Ibrahim Aal Al-Sheikh, may Allah rest his soul, the former Grand Mufti of Saudi Arabia.  He was a Mujtahid (a maker of original Islamic decisions) and a striver emulating the tradition of Muhammad (pbuh), who said, ‘The best jihad is a just word before an unjust ruler.’  He wrote the book Arbitration in Law, which is now before the reader.  Despite its small size, it is the most important book in the field of Shariah (sacred law) policy and the Salafi call in our present day.
In fact, man-made laws are the spirit of Western civilisation, the secret of its conquest of the world and the means by which it dominates other peoples and nations.  Furthermore, these man-made laws are shirk because they impose obligations on people through man-made orders and prohibitions with all the force of the state, but these obligations are exclusive to none other than the Divinity.  Mankind has to testify to the unity of Allah, the Creator, the Lord of the worlds, the Unique, Who has no partner.
The Community cannot achieve the unity of the Divinity, be Muslim and rid itself of Western colonialism unless it relinquishes the system of man-made, artificial laws of the West, which dominate Muslim countries.
Sheikh Muhammad, may Allah rest his soul, explained the reality of the man-made law system and the judgment of Islam on it, as clearly as the sun itself, so as not to leave any doubt that would lead to misunderstanding or misinterpretation because the style of the book Arbitration in Law is organised, methodological and consistent.  He points out at the beginning of the book that arbitrating with man-made laws is nothing but a contradiction in judgment according to what Allah has revealed, and a categorical unbelief on the part of the person adopting it.  From the start of the book he divides unbelief into two kinds: unbelief by conviction, which nullifies one’s Faith, and unbelief in practice, which does not nullify one’s Faith.  He then divides unbelief by conviction into six kinds, the first four belonging to the heart within individual situations.  The sheikh classified them according to their strictness, from the most to the least.  The first conviction is annulling one of Allah’s rulings; the second is that a certain man-made ruling is better than Allah’s; the third is that rulings other than those given by Allah are analogous to Allah’s rulings; the fourth is that it is allowable to rule differently from Allah’s rulings despite being convinced that Allah’s are better.  They are all unbelief by conviction, which nullify Faith.
The sheikh, may Allah rest his soul, then mentions the other two forms of unbelief by conviction that nullify Faith, which are not inward and heartfelt and are not exclusive to individual situations.  They are public and common and have to do with the government system as a doctrinal social phenomenon.  The first is to adopt a fabricated legal system taken from many systems — such as French, American and British laws along with some Shariah rulings — as a reference for the government system in a comprehensive, organised, obligatory structure.  The sheikh says this is the worst, the most far-reaching, the most challenging to the Sacred Law, the most arrogant towards its rulings, the most cumbersome to Allah and His Messenger, and the most analogous to Shariah courts.  Is there any unbelief beyond this and any contradiction beyond this to the declaration that Muhammad is the Messenger of Allah?  It is to be noted that the use of the word ‘courts’ does not imply that man-made laws are exclusive to the judiciary system.  It also has to do with all government systems because it is stated that these laws commit, approve and oblige people to them.  The function of a court is never to set laws for people to refer to in case of dispute settlement and never to compel them to their judiciary ruling.
The second has particularly to do with Saudi society, in which tribes adopt tribal customs, called saloum, as their governing system.
In the last two kinds, number five and six of unbelief by conviction according to the sheikh’s classification, the sheikh is adamant that they nullify Faith, just as the first four do.  However, the sheikh, may Allah rest his soul, does not argue in these two about their belief differently from his argument regarding the four earlier ones because both of them are a doctrinal and social phenomenon.  The belief of individuals is of no concern.  Consequently, there is no need to question inward, heart-felt conviction.  Rather, it needs research into the reality of how man-made laws are applied and imposed systematically, which in itself is the clearest and most dominant evidence in them both.
The second section of a ruler’s unbelief in what Allah has revealed concerns his strong desire and caprice, which drives him to rule on something differently from what Allah has revealed — despite his belief that Allah’s and His Messenger’s ruling is the right one — while admitting his offence and deviation from Guidance.  That is unbelief that does not nullify faith, as was pointed out in Ibn Abbas’s statement, ‘it is unbelief less than unbelief.’  It is not the kind of unbelief that you infer in interpreting Allah’s words: “Whoever does not rule by what Allah has revealed are unbelievers.”  However, this kind of unbelief in what Allah has revealed is beyond the scope of this book.
Man-made laws of arbitration are not only the greatest, most inclusive and most obvious form of unbelief by conviction, which nullifies faith, but it is also the most widespread and most influential in Muslim countries.  There is even no place on earth in which these man-made laws are not applied, including the country where the sheikh, may Allah rest his soul, assumed the post of a Mufti (a legal functionary who gives religious opinions).
The sheikh, may Allah rest his soul, said the following in his letter to the Prince of Riyadh:
We refer to your letter No. 4926 dated 11/4/1375 AH, with documents attached relating to establishing the Riyadh Chamber of Commerce.
We would advise you that its system has been studied.  We have mainly noted item d, article 3, which says, “The Chamber shall be the authority to refer to for settling commercial disputes between disputing traders whether the sued person is registered in the Chamber or not.”  A copy reached us entitled “The System of the Commercial Court in Saudi Arabia” reprinted by the state press in Makkah in 1379 AH.  We have studied almost half of it and found man-made legal systems in it that are not from the canonical law of Islam.  We have discovered that, since the Chamber is the authority for disputes and will have a court whose judges are not Shariah jurists but are merely legalists, this undoubtedly contradicts what Allah sent to His messenger (pbuh).
The Shariah is exclusively designed to judge between people.  It sheds light on their creeds and devotions, informs them of what is allowed and not allowed and settles disputes when they arise.  So considering any other law as worthy to judge by, even if it were of little import, undoubtedly shows displeasure with Allah’s and His Messenger’s judgments and attributes a deficiency to their rulings and qualifications for settling disputes and delivering rights to their owners.  Belief in this is unbelief that nullifies faith.  It is a grave matter and is not something subject to ijtihad (personal effort).  Arbitration using the Shariah alone without anything else is the twin to worshipping Allah alone without any equal.  The meaning of the Testimony of Faith is that Allah is the only One to be worshipped, with no partner, and that His Messenger (pbuh) is the only one to be followed and the arbiter over what was sent to him.  The swords of jihad were only brandished for that sake so that matters would actually be carried out in practice, or left alone or arbitrated when a dispute arose.
The sheikh, may Allah rest his soul, pointed out that Tawheed (unity of Allah) cannot be attained until man-made laws of arbitration are disowned by saying, ‘Shariah arbitration alone without anything else is the twin to worshipping Allah alone without any equal.’  Sheikh Abdul Hadi Wong’s words, head of the Malaysian Islamic Party (may Allah preserve him), have the same impact: ‘Faith in the unity of the Lordship and Divinity of Allah must be confirmed by endorsing His role as Judge, i.e. referring to His rulings.’
Regrettably, the sheikh’s words were not listened to at that time, not only by judges but rather by many religious students.  This has led to the deterioration of Muslim affairs day by day up to our present time.  This has made us feel the need to reprint this book, to translate it into all languages, and to publish it all over the world until the Community has disowned man-made Western laws of arbitration, which is unbelief by conviction and which nullifies faith.  It is even the gravest and worst form of unbelief.  The Community will not return to the unity of Allah’s sovereignty alone until it has unified its ranks under one leadership, submitting itself solely to Shariah rule before any other.  We have to establish the rightly guided caliphate to reassume its pioneering position in liberating all mankind from their slavery to others, which is manifested in the man-made Western laws of arbitration that have dominated the whole world including the Muslim countries.
We ask Allah for success.  There is no power or strength save in Allah, the Exalted, the Powerful.
 
Arbitration in Law
In the name of Allah, the most Gracious, the Most Merciful
The gravest and most obvious unbelief is treating the accursed law equally with what was revealed by the Holy Spirit to Muhammad’s heart (pbuh) so that he could warn in an eloquent Arabic tongue, judge between people and refer their disputes to Allah when they contradicted and defied Allah’s words in the Holy Qur’an:
“If you differ in anything among yourselves, refer it to Allah and His Apostle, if you believe in Allah and the Last Day.  That is best, and most suitable for final determination.” (4–59)
Allah the Almighty denies Faith to those who do not choose the Prophet (pbuh) as arbitrator in their disputes.  This is stressed by repeating the negative particle ‘no’ and by swearing, when He says:
“But no, by your Lord, they can have no [real] Faith until they make you judge in all disputes between them, and find in their souls no resistance to your decisions, but accept them with the fullest conviction.” (4–65)
Almighty Allah does not find it enough for them only to choose the Messenger (pbuh) as arbitrator; rather they must add that they have no grudge in their hearts, or as He says, ‘and find in their souls no resistance against your decisions.’  Their hearts should be open for this and be free of anxiety and turmoil.
These two matters are not sufficient for Allah unless they add surrender, which means full submission to the Prophet’s judgment (pbuh).  Thus, they rid themselves of any attachment in their souls to this affair and surrender absolutely and fully to his judgment.  Allah stresses this with the phrase ‘with the fullest conviction’, which shows that mere surrender is not enough; it should be absolute.
Consider the word ‘anything’ in the former verse:
“If you differ in anything among yourselves, refer it to Allah and His Apostle, if you believe in Allah and the Last Day.  That is best, and most suitable for final determination.” (4–59)
It comes with the condition ‘if you differ’, which denotes everything that can be imagined of ‘difference’ or ‘dispute’ in kind or magnitude.  Consider also how He has made this a condition for attaining faith in Allah and the Last Day at the end of the verse: ‘If you believe in Allah and the Last Day,’ which we cited above.
Then Almighty Allah says, ‘That is best.’  Anything to which Allah applies the word ‘best’ has surely no evil in it at all.  It is pure good, now and for ever.
Then He says, ‘most suitable for final determination’ in this world and in the Hereafter.  This means that choosing other than the Messenger (pbuh) as arbitrator in a dispute is pure evil and the worst outcome in this world and in the Hereafter.
This is the opposite of what the hypocrites say:
“We meant no more than good-will and conciliation!” (4–62)
They also say:
“Why, we only want to make peace,” (2–11)
but Allah replies:
“Of a surety they are the ones who make mischief, but they realise [it] not.” (2–12)
It is also the opposite of law makers’ opinion that it is essential and necessary to resort to law for arbitration.  This is a pure misjudgement of what the Messenger (pbuh) came with.  It totally disparages Allah’s and His Messenger’s teachings by judging that they can inadequately rule between people in dispute.  Such people deserve a bad end in this world and in the Hereafter.
Consider also the second verse and its generalisation in which Allah says, ‘in all disputes between them,’ meaning in all manners and magnitudes, of whatever kind, of whatever size, small or great.  Allah denies faith to those hypocrites who want to arbitrate with other than what the Messenger (pbuh) came with in accordance with Allah’s words:
“Have you not turned your vision to those who declare that they believe in the revelations that have come to you and to those before you?  Their [real] wish is to resort together for judgment [in their disputes] to the Evil One though they were ordered to reject him.  But Satan’s wish is to lead them astray far away [from the Right].” (4–60)
Allah’s use of the word ‘declare’ rejects their claim to faith because arbitration with other than what the Prophet (pbuh) brought and Faith cannot sit together in a worshipper’s heart in the first place.  They contradict one another.  The Taghut (Evil One) is derived in Arabic from the word meaning transgression or going beyond the limits.  Anyone who judges differently from what the Messenger (pbuh) came with or seeks a judgment in other than what the Prophet (pbuh) came with is a person who judges by Evil and arbitrates with it.  Everyone should judge solely by what the Prophet (pbuh) brought, and by nothing else.
Similarly, everyone should arbitrate with what the Prophet (pbuh) brought.  Whoever judges differently or asks for someone else’s ruling goes beyond the limits and transgresses in judgment or arbitration thus becoming himself an Evil One for going beyond the limits.
Consider what Almighty Allah says: ‘they were ordered to reject him.’  You can realise in this how stubborn the law-makers are for wanting other than what Allah wants from them in this regard.  In the Shariah, they are required to disbelieve in the Evil One and not to choose him as the arbitrator.  Allah says:
“But the transgressors changed the word from that which had been given to them.” (2–59)
Now consider His words, ‘but Satan’s wish is to lead them astray far away [from the Right],’ and how this misguidance is seen by these legalists as guidance.  The verse indicates that this comes from Satan’s will, which is contrary to what legalists think, namely that it is for the benefit of mankind.  Thus, Satan’s aims, as they allege, become man’s welfare, and the Merciful’s will and what the Prophet (pbuh) was raised for is isolated from this description and removed from this matter.
In denouncing this kind of people by stating that they seek the rulings of Ignorance, and clarifying that there is no judgment better than His, Almighty Allah says:
“Do they desire [to be ruled by] the law of pagan ignorance?  But who, for people whose faith is assured, can give better judgment than Allah?” (5–50)
Reflect on this holy verse and how it indicates that judgment can be divided into two kinds, and that next to Allah’s law-giving there is nothing but the law of pagan ignorance whether they like it or not.  In fact, these people are even worse than pagans and more untruthful in their words because at least the people of pagan ignorance did not contradict themselves in this respect.
However, legalists are bound in contradiction.  They allege they believe in what the Prophet (pbuh) came with, yet they act differently and want to take a middle, conciliatory way.  Allah the Exalted says about such people:
“They are in truth unbelievers, and we have prepared for unbelievers a humiliating punishment.” (5–151)
See how the following verse disproves the legalists’ position — what they claim to be goodness is actually the rubbish of their minds and the scraps of their thoughts:
“But who, for people whose faith is assured, can give better judgment than Allah?” (5–50)
Al-Hafiz bin Kathir, in his commentary on this verse, said:
Allah denounces those who depart from His firm judgment, which includes all good and forbids all evil, and adopt a different set of opinions, whims and terminology set down by men without support from the Shariah.  They are like the people of Ignorance who used to judge matters by taking from errors and ignorance what their opinions and whims fabricated.  They are like the Tartars whose royal policies were taken from their king, Genghis Khan, who compiled a book of judgments for them.  He cited various laws from Judaism, Christianity, Islam, and so on.  The book also contained many judgments reflecting his views and whims, which his sons took for a system of laws and gave priority to them over Allah’s judgments and His Messenger’s Sunnah.  Whoever does that is an unbeliever who should be fought against until he returns to Allah’s and His Messenger’s judgments.  No other judgment should be resorted to, be it great or small.  Allah the Exalted says:
“Do they desire [to be ruled by] the law of pagan ignorance?” (5–50)
In other words, they seek and resort to it, declining Allah’s judgment.
“But who, for people whose faith is assured, can give better judgment than Allah?” (5–50)
In other words, who is fairer than Allah in his judgment?  However, that is for the one who has comprehended Allah’s Shariah and absolutely believed in it.  He knows that Allah is the Most Just of judges, and more Merciful to His creatures than a mother to her infant.  He is the All-Knowing of everything, the All-Powerful and the Most Equitable in everything.
Almighty Allah says, addressing His Prophet Muhammad (pbuh):
“So judge between them by what Allah has revealed and follow not their vain desires, diverging from the truth that has come to you.” (4–48)
He also says:
“And this [He commands]: Judge you between them by what Allah has revealed and follow not their vain desires, but beware of them lest they beguile you from any of that [teaching] which Allah has sent down to you.” (5–49)
Allah the Exalted gave His Prophet Muhammad (pbuh) the choice between judging between Jews and declining to interfere if they came to him for this.  He says:
“If they come to you, either judge between them, or decline to interfere.  If you decline, they cannot hurt you in the least.  If you judge, judge in equity between them.  For Allah loves those who judge in equity.” (5–42)
Equity is fairness, and there is no true fairness except in Allah’s and His Messenger’s judgment (pbuh).  Judging differently is iniquity, injustice, misguidance, unbelief and transgression.  For this Allah the Exalted says next:
“For they who do not judge in accordance with what Allah has bestowed from on high are, indeed, deniers of the truth.” (5–44)
“For those who do not judge in accordance with what Allah has revealed, they are the evil doers.” (5–45)
“For those who do not judge in accordance with what Allah has bestowed from on high, it is they who are truly iniquitous.” (5–47)
See how Allah the Exalted brands those who rule by other than what He has revealed with unbelief, wrong-doing and iniquity.  It is impossible that Allah the Glorified calls a judge who rules differently from what He has revealed an unbeliever and is not truly an unbeliever.  He is an absolute unbeliever.  He has unbelief either in practice or by conviction.  It is related that Ibn (son of) Abbas, may Allah be pleased with both of them, in his comment on this verse, as narrated by Tawus and others, that he who judges differently from what Allah has revealed is an unbeliever either by conviction, which nullifies Faith, or in practice, which does not nullify Faith.
A. Unbelief by Conviction
There are various kinds.
1. If a ruler judges differently from what Allah has revealed.  Thus, he disbelieves in the correctness of Allah’s and His Messenger’s judgment.  This is the meaning of what Ibn Abbas related and Ibn Jarir adopted, that this is disbelief in what Allah has revealed of the Shariah.  It is undisputed among knowledgeable scholars that one of the principles agreed upon among them is that whoever absolutely disbelieves in any principle of religion or any branch agreed upon or rejects even a letter the Prophet (pbuh) came with is in unbelief that nullifies Faith.
2. If a ruler who judges differently from what Allah has revealed does not deny that Allah’s and His Messenger’s judgment is certainly correct.  However, he believes that the ruling of someone else is better than the Messenger’s and more complete and inclusive of what people need for ruling among them in their dispute, either in all cases or in relation to new events that arise because of the development of time and changes in circumstances.  This is undoubtedly unbelief for preferring the rulings of mankind, which are utter rubbish of the mind and sheer dregs of thought compared to the judgment of Allah the All-Wise, the All-Praiseworthy.
Allah’s and His Messenger’s judgment does not change in its essence with the change of time and circumstances.  There is no issue whatsoever but has a judgment on it in the Book of Allah, the Exalted, and the Sunnah of His Messenger (pbuh) either in a clear text or through inference, or else known to those who know or unknown to those who do not know.
When so-called scholars talk of a change in ‘religious opinion’ with a ‘change of circumstances’, this does not mean what these people with limited or no knowledge of the goals and reasons for rulings think.  They think that it applies to what suits their lustful and animal desires, their worldly interests or their unwholesome, erroneous fancies.  For this you see them support and defend their causes and bend the texts to their own ends as much as they can.  Thus, ‘they displace words from their [right] places,’ as the Qur’an says.
The intention of scholars regarding a change in fatwa (religious opinion) with a change of time and circumstances is to accompany it with the Shariah principles, the relevant reasons and requirements that stick to the will of Allah the Exalted and His Messenger (pbuh).  It is well-known that law-makers are far removed from this, and that they do not say anything save what suits their desires whatever they might be.  Reality is the best witness to this.
3. If a judgment is not believed to be better than Allah’s and His Messenger’s, but believed to be equal to it.  This is similar to the previous two kinds in that it is unbelief that nullifies Faith since it puts the Creator and the created on an equal footing.  It contradicts and defies Allah’s words:
“There is none like Him” (42–11)
and other verses of its like that denote that the Lord is Unique in His perfection and free of any resemblance to His creatures in essence, attribute or deed, or in His judgments between people in their disputes.
4. If the ruler does not consider his judgment, which is other than what Allah revealed, equal to Allah’s and His Messenger’s, let alone better.  However, he believes in the admissibility of judging differently from Allah’s and His Messenger’s ruling.  This is similar to the afore-mentioned in nullifying Faith for believing in the admissibility of what is known to be prohibited in unequivocally sound texts.
5. This is the gravest and most inclusive in defying the Shariah and its rulings.  It contends with Allah and His Messenger and imitates Shariah courts in its preparation, support, investigation, sourcing, branching, forming, diversifying, ruling, obligations, references and documents.  Just as Shariah courts have references they resort to, so these courts have references that are fabricated from various law systems such as French, American and British law among others as well as from schools of some innovators who belong to the Shariah, and others.  These courts exist today in many Muslim countries.  They are all ready with their doors open, and people flock to them both individually and in groups.  Their judges rule between them with rulings different from those in the Book and Sunnah, relying instead on these laws.  They order them to abide by it, they approve it and impose it on them. Is there unbelief greater than this unbelief?  Is there a greater contradiction to the proclamation that Muhammad is the Messenger of Allah than this?
Providing evidence for everything we have just presented will not be done here since the matter is already well-known, and the subject does not allow it.
O people of intelligence, discernment and understanding!  How content you are with rulings or thoughts of people of your like or those beneath you who are liable to error or who are wrong much more than they are correct, or even who have no correctness in their judgments save those taken from Allah’s or His Messenger’s text or inferred from it!  How do you allow them to rule over yourselves, in your blood, skin and honour, in the household of your spouse and children, in your money and all your rights?  They have quit resorting to Allah’s and His Messenger’s rulings — or even refuse to do so — which are never erroneous, and falsehood never comes to them from any direction.  They are a revelation from Allah the All-Wise and All-Praiseworthy.  When people surrender and submit to their Lord’s judgment, they are surrendering and submitting to the ruling of Him Who created them to worship Him.  Just as humans do not prostrate themselves except to Allah, worship anyone but Him or worship any creature, they should not surrender to, submit to or follow any ruling save that of Allah the All-Wise, All-Knowing, All-Praiseworthy, the most Compassionate, the most Merciful.  They should not submit to the ruling of an unjust, foolish creature, who has been ruined by doubts, suspicions and base desires, whose heart has been dominated by heedlessness, hardness and darkness.
People of intelligence should deem themselves above all this because it enslaves and dominates them with whims, self-interest, errors and mistakes, besides being unbelief.  As Allah says:
“If any do fail to judge by [the light of] what Allah has revealed, they are unbelievers.” (5–44)
6. This is what a lot of clan and tribal chiefs of the Bedouins, and their like, do, namely rule by their fathers’ and grandfathers’ stories and customs, which they call their saloum.  They have inherited this from them, judge by it and urge it on rulings over disputes.  It preserves the rulings of Ignorance and turns away from Allah’s and His Messenger’s judgments.  We can only say alas to this.
B. Unbelief that does not nullify Faith
We mentioned earlier Ibn Abbas’s comment on what Almighty Allah says:
“For those who do not judge in accordance with what Allah has bestowed from on high are, indeed deniers of truth.” (5-44)
It includes the part when he says that it is ‘unbelief below unbelief’.  He also said, ‘It is not unbelief that your minds go to.  It is when someone’s lust and caprice oblige him to judge in a case differently from what Allah revealed despite his belief that Allah’s and His Messenger’s judgment is right, and admitting his mistake and his deviation from Guidance.’  If his unbelief does not nullify Faith, it is nevertheless a grave sin greater than the major sins like adultery, drinking alcohol, theft, perjury, and so on.  A sin that Allah calls ‘unbelief’ is graver than a sin that He does not call it so.
We pray to Allah to make Muslims resort to His Book for judgment, seeking obedience and His pleasure.  He is the Master of this and Capable of it.