Question:

How is it possible for a Muslim to argue their 'rights' whilst residing in a ruling system  they consider as kufr  ? If Muslims advocate that participation in kufr ruling system is haraam, then by greater reasoning seeking rights from such a system is also a haram, right ? Or if seeking rights is permissible, then voting within the same kufr system should be permissible  ?

Answer:

No, there are two distinct issues here, we have to understand reality of the each and extract a ruling based on its merit. This confusion arises when we analogise things using our mind.

With regards to the issue of seeking our rights, the following incident constitute the evidences to establish the permissibility.

1.Muslims in Abyssinia defended themselves before the King Negus (who was a kafir ) so as to not to hand them to the delegates of Quraish, and also proving the zulm of Quraish and that they (the Muslims) were on the truth (haqq) and the delegates of Quraish were on falsehood. The Prophet (saw) approved their actions by his silence. Also, the consent of the Messenger (saw) to the Muslims to live in Makkah, that is those who did not emigrate to Dar-al-Islam in Al-Madinah before the conquest of Makkah. This consent indicates by implication (iqtida'a) that it is allowed for Muslims to demand their rights and to remove the zulm away from them; for this is what is required (necessary) by living in any society.

2. A Muslim has the right to demand for his right and to demand for removing the injustice away from him and to defend himself by proving his right and removing the injustice away from him. He has the right to delegate another person (such as a solicitor) to do that on his behalf.

3. Such right has to be approved by the Shar'a but not by the man-made law, and similarly the zulm (injustice) has to be proved likewise. Had a Muslim sold some alcohol and the purchaser did not pay him the price, this price would not be considered a right for the Muslim. Therefore it is wrong to demand of it, though it is (his) right according to the man-made law. Similarly if an insurance company did not pay to the insurer for an accident, i.e. did not compensate him and dealt with him unjustly, this would not be considered an unjust act falling on the insurer because shar'a does not approve of the insurance companies. Therefore it is wrong to make a claim for removing this zulm away from him and demand fair compensation. This rule applies to any similar cases.

4. It is haram upon the Muslim to make a court case demanding a right not proved by Shar'a. Nor to demand the removal of a zulm from him if not proved by the shar'a. Likewise the solicitor is not allowed to accept a case demanding a right or removing a zulm on behalf of his client if such right or zulm is not proved by the shar'a. Therefore, the trial made by a Muslim or his solicitor through presenting false evidence or using clever language and the like to obtain a right depending in that on man-made law or illegal means, all that is a crime in the view of Islam: and possessing a right through this way is possessing a piece of fire, as it comes in the Hadith. 

4.Any defense presented by a Muslim or the solicitor that includes praise of the man-made law or its fairness or its legislator, all that involves such person doing so in sin, for all the man-made laws (other than the law of Allah) are invalid and oppressive (zaalim). The only thing allowed for the Muslim and the lawyer is to present the proofs, evidences and the arguments to support his rights and remove the zulm from him and defending himself, all this should be according to the truth (haqq) that Allah obliged.

However, the participating in the ruling system, voting for kufr political parties, praising kufr ruling system, voting in a non-Islamic system constitute acts of shirk (polytheism). Moreover it is NOT SIMILAR to the issue of seeking rights because the texts (wahy) decides what is prohibited and what is permitted even thought the mind (aql) may perceive sameness 

Shariah Analogy vs. Rational Analogy

This confusion arises when the mind is used to make analogies. This is contrary to the Shari'ah analogy because the Shari'ah more often than not distinguishes between similar things and combines together many things that are different. 

Similar issues with different rulings

As regards differentiating between similar things the Shari'ah has differentiated between times which seem similar to the Muslim in terms of their sacredness. Thus it has give a preference to the night of Power (laylatul qadr) over other nights. And it has discriminated between places in terms of their sacredness such as the preference for Makkah over Madinah and Madinah over other cities. It has distinguished between the prayers when they are shortened. Hence, the prayer consisting of 4 raka'ahs is shortened whilst the three and two raka'ahs are not shortened. It has distinguished between the semen (minan) and the pre-seminal fluid (mazin). It made the pure and the impure even though they are emit from one place. It obliged one have ghusl (bath) from the minan and invalidated the fast when it is deliberate emitted but not if it is mazin even though they emit from one place. It obliged the clothes to be washed due to the urine of a baby girl but only to sprinkle water on it if it is the urine of a baby boy. It obliged the menstruating woman to make up the fast but not the prayer. It cut the hands of the one who stole three dirham but did not cut the hand of the one who illegally possessed huge sums of wealth. It made the waiting period ('iddah) of the divorced woman three menstrual cycles whilst the waiting period of the widow is four months and ten days even though the condition of the rahm is the same. In this manner we find many rules which are similar and one can combine them. If it was left to the mind to give the rules in these issues then it would have made mistakes. It would have brought a rule in conflict with what the Shari'ah has given. The Shari'ah has given for each one a different rule which indicates the corruption of this method of analogy.

Different issues with same ruling

As regards combing the things which are different the Shari'ah has given the same rules for different issues. Even though the rational analogy does not accept this. The Shari'ah has combined the water and dust by allowing one to be purified by them even though water cleanses and dust makes one dirty. It forbade the riba al-fadl in gold and wheat even though their reality is different. And it has imposed the death penalty on the apostate and adulterer though the methods differ despite there being a difference between the two actions. And it has protected the Muslim and the Non-Muslim (Zimmi) despite the fact that they are both different in terms of the Deen. It obliged eighty lashes for the one who falsely accuses a woman of zina and the one who drinks alcohol even though the reality of the two actions is different.

And in this manner there are many rules whose realities clearly differ and nothing can bring them together, despite this the Shari'ah has given them the same rule. If it was left to the mind to make analogy then it would have come with a rule contrary to the Shari'ah. and it would not have been able to give similar rules due to different realities of things. This also indicates the corruption of this methodology in analogy. 

In addition to this we find that the Shari'ah has given rules in which the mind has no role to play. The Shari'ah has allowed trade but forbidden usury even though both are a trade and they are similar. It stipulated four male witnesses in fornication but two is sufficient for murder even though killing is worse than fornication. It obliged wiping over the top of the socks and not under it even though it is more fitting to wipe the underneath. Regarding this Sayyidina 'Ali (ra) says: 'If the Deen were to be taken by analogy (i.e. rationally) then wiping under the socks would have been more deserving than wiping the top.'

Conclusion

Therefore, the permissibility of one issue cannot be used to justify the permissibility of another similar issue without a Shariah analogy. Our thinking could regress to the level of Greek philosophers, if the mind is used to make analogies and extract rulings. Allah (swt) has given us the correct sources, the correct methodology, a sound intellectual foundation to understand issues. This references point saves us the trouble of bouncing back and forth in wild speculation.
 

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