When you know that the three verses, whosoever does nor rule by what Allaah revealed then they are kaafir, then they are dhaalim, then they are faasiq were revealed with regards to the Jews and their saying over his (sallallaahu `alaihi wasallam) judgement, if he gives you what you want then agree to have him arbitrate, but if does not then beware and do not agree to have him arbitrate - this saying which the Quraan points to before these verses, they say: if you are given this then take it, but if you are not given this then beware.- when you understand this then it is not permissible to take these verses to refer to some of the rulers and judges of the Muslims who rule by other than what Allaah revealed in the earthly laws.
I say: it is not permissible to declare them kaafir due to this, and to eject them from the religion, when they are believers in Allaah and His Messenger, even though they are sinning by ruling by other than what Allaah revealed - this is not permissible. Because even though they are like the Jews from the point of view of their ruling (by other than what Allaah revealed), they differ from the point of view that they have faith and conviction in Allaah contradicting the Jews, for indeed they rejected the Messenger (sallallaahu `alaihi wasallam) as indicated in their previous saying, but if he does not then beware and do not agree to have him arbitrate.
And the reason behind this is that kufr is of two types: kufr in belief and kufr in action, and the kufr in belief is linked to the heart, and the kufr in action is linked to the limbs. So the one whose actions are kufr due to their contradicting the Shareeah, and this kufr follows on from what has become established in his heart i.e. kufr in belief, then this is the kufr which Allaah will not forgive and this person will reside in the Fire forever. But if (these kufr actions) contradict what is established in his heart, then he is a believer in the Rule of his Lord, but he contradicts this with his actions. So his kufr is kufr of action only, and it is not kufr in belief. And he is under the Will of Allaah, if He Wills He will punish him, and if He Wills He will forgive him. And it is with this (second) type (of kufr) that some of the ahaadeeth are to be understood which generalise the term kufr for a Muslim who performs a sinful action. And it would be good to mention some:
1) two things if done are kufr: abusing genealogies and wailing over the dead. Reported by Muslim
2) Arguing over the Quraan is kufr.
3) Abusing a Muslim is fisq, and killing him is kufr. Reported by Muslim
5) Speaking about the favours of Allaah is giving thanks (shukr), and leaving it is kufr
6) do not return to being kaafir after me by some of you hitting the necks of (killing) others. Agreed upon.
And many other ahaadeeth for which there is no need to go into great detail about at this time. So any Muslim who performs any of these sinful actions, then his kufr is kufr in action i.e. he has done an action of the kuffaar. Except in the case that he sees it (the sin) to be permissible, and does not believe in its being a sin, so in this case he would be a kaafir whose blood is lawful because now he has also shared in the belief of the kuffaar.
And ruling by other than the what Allaah revealed is not exempted from this principle, and what is narrated from the salaf supports this, and that is none other than their saying on the tafseer of this verse, kufr less than kufr as is authentically reported from the Commentator of the Quraan, ibn Abbaas, and then some of the Taabieen and others learnt this from him. And it is necessary to mention some of them so that maybe they may illuminate the path ahead of those that have been misguided in this dangerous issue, and have taken the road of the Khawaarij who declared people to be kaafir due to their committing sins even though they may pray and fast!
1) ibn Jareer at-Tabaree narrates (10/355/12053) with a saheeh isnaad from ibn Abbaas that he said about the verse, whosoever does not rule by what Allaah revealed then they are kaafir, meaning kufr, but not kufr in Allaah and His Angels and Books and Messengers
2) And in a narration from him about this verse, it is not the kufr that they (i.e. the Khawaarij) believe, indeed it is not the kufr that ejects one from the religion, it is kufr less than kufr.
Narrated by al-Haakim (2/313) and he said saheeh isnaad and adh-Dhahabee agreed. And it would have been more deserving of them to say, saheeh according to the conditions of the two Sheikhs (Bukhaaree and Muslim) as the isnaad is like this. Then I saw that ibn Katheer said in his tafseer (6/163) from Haakim that he said, saheeh according to the conditions of the two Sheikhs, so it is obvious that this statement is omitted in the printed edition of al-Mustadrak. And ibn Katheer also ascribes the narration, summarised, to ibn Abee Haatim.