INTRODUCTION and Sunnah that comprise the ethical, pious,

INTRODUCTION

The sharia is the compendium of beliefs and ideals which originate from
the Quran and Sunnah that comprise the ethical, pious, and legitimate philosophies of
Islam. It is differentiated from fiqh (jurisprudence) which is the applied
function of those philosophies in the physical realm. In other words, the sharia can be referred to as the soul or
essence of the law, whilst fiqh can be
christened the interpretation of the law. The difference between the sharia and fiqh is of supreme consequence in Islamic legal theories and
ideologies, which is akin to the manner in which Western jurists would differentiate
the literal wording of the law from the contextual and purposive interpretation
of the law. It is important, however, to encourage Muslims to unite upon the sharia but to be tolerant amongst each
other regarding disparities in fiqh
for the reasons displayed in the remainder of this essay.

A BRIEF OVERVIEW OF SHARIA AND
FIQH

The terms sharia and fiqh are, by
definition, classified as two separate entities with two distinct functions;
however, they are by no means mutually exclusive. Sharia is made up of three elements: the laws dictated in the
Quran, the laws revealed to Prophet Mohammad (peace be upon him) and the laws
derived from the lifestyle of the Prophet (peace be upon him). Since sharia is strictly derived from the Quran
and Sunnah, its nature remains indomitable and abstract.

On the other hand, Kamali states
that fiqh is “knowledge of the
practical rules of shariah acquired
from the detailed evidence in the sources”1.
In other words, fiqh is indirectly consequential
from the Quran and Sunnah, with a specific view to address concerns not expressly
addressed by the sharia.

THE DISTINCTION BETWEEN SHARIA
AND FIQH

Khaled Abou El Fadl describes the
difference between sharia and fiqh as follows:

It is God’s Will in an ideal and
abstract fashion, but the fiqh is the product of the human
attempt to understand God’s Will. In this sense, the sharia is
always fair, just and equitable, but fiqh is only an attempt
at reaching the ideals and purposes of sharia (maqasid al-sharia).
The conceptual distinction between sharia and fiqh was
the product of a recognition of the inevitable failures of human efforts at
understanding the purposes or intentions of God.2

Three primary differences exist between
fiqh and sharia: firstly, sharia
is static in nature whilst fiqh is
subject to change depending on the circumstances; secondly, sharia addresses concerns in a broad and
generalised manner whilst fiqh tends
to focus on precise issues at hand; and thirdly, sharia is derived from the Quran and Sunnah whilst fiqh is derived from sharia itself. The sharia is immutable in the sense that the pursuit for righteousness,
virtuousness and faithfulness is not variable – we are eternally bound to
strive towards righteousness. Conversely, fiqh
inevitably modifies with time because our human concepts of righteousness and virtuousness
change in accordance with time and context.

In
contemporary discourses, especially in a legal advocacy setting, it is very
important to keep the two terms fiqh and sharia distinct. Sloppy
use of the term sharia can (and does) generate unnecessary resistance to
what otherwise would be legitimate and uncontroversial assertions. It is
unnecessarily provocative to advocate, for example, changing or reforming sharia,
because this implies that God’s Law is not itself already perfect, a suggestion
likely to generate resistance from many Muslims. But advocating a change or
reform of fiqh is quite a different matter, because fiqh is
fallible, and in fact its many manifestations already reflect the consideration
of a variety of different social norms. In short, sharia (God’s Law)
cannot be questioned by Muslims, but our understandings of sharia— namely, the
fiqh rules—are always open to question.3

The purpose of sharia here
is similar or parallel to that of natural law allusions, whereby concurring to the
natural law theory, there is an imprecise line between the concept of law and
the concept of morality. Recently, Abdullahi An-Na’im has made the provocative
argument below:

…Precisely because sharia is
supposed to be binding on Muslims out of religious conviction, a believer
cannot be religiously bound except by what he or she personally believes to be
a valid interpretation of the relevant texts of the Qur’?n and Sunnah. Yet,
given the diversity of opinions among Muslim jurists, whatever the state elects
to enforce as positive law is bound to be deemed an invalid interpretation of
Islamic sources by some of the Muslim citizens of the state.4

This is especially true in
consideration of the inevitable difference of opinion that results from
enforcing fiqh in real-life scenarios. Moreover, such “objections to the
enforcement of sharia through positive law and the notion of
an Islamic state do not, of course, preclude Muslims from personally conforming
with every aspect of sharia.”5

Part of the beauty of—as well as a source
of frustration in—Islamic law is the plethora of positions and interpretations
in jurisprudence. This underlying precept adds to the confusion: while Islamic
law attempts to moralize legal actions and formalities by placing them in the
context of religion and morality, it tends to discourage the formalization or
legislation of the religious and moral precepts. The very fact that the sharia
law has to be recreated through the fiqh?based
approach with its various schools of thought testifies to this assertion.6

In other words, the sharia-based approach to Islamic law
cannot diminish the analytical purpose of the fiqh-based approach as one’s comprehension of same can continually develop,
one’s instinctual judgement can progress over time in order to be more acute.
As a divine guide for action, and notwithstanding its fundamental relation to
Islamic law, sharia must not be muddled or confused with fiqh, or any other definite ethical and
propositional concept, or any constitutional proposition for a purely
Islamic law abiding state. Nonetheless, fiqh can serve as an
aid in coming to understand divine law insofar as it enables us to obtain
further, dialectical insight into that which transcends positive law via means
of discursive reasoning and rational understanding. In other words, sharia and fiqh, which are individually and collectively intrinsic to the
Islamic science of jurisprudence, are synonymous with the practice of developing
(instinctual or non-propositional) comprehension into divine law. Furthermore,
there is a dialectical relationship between sharia
and fiqh that exemplifies, from an
epistemic viewpoint, a contention between propositional comprehension and
‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ in
accordance with the teachings of Shihab al-Din Suhrawardi: “The insight that
transcends words cannot be attained except by means of words; what cannot be
spoken of becomes manifest in the very act of speaking.”7

Hence, it is held within reason that the Islamic state cannot operate
based on sharia alone. It is imperative to bear in mind the essential philosophical,
rational or abstract, and lawful differences that make a change to our comprehension
of what is normative, dogmatic and illustrative. For instance, the reasoning
made by An-Na’im exemplifies the necessity and importance of fiqh,
particularly in consideration of its effectiveness in legitimising sharia:

When
observed voluntarily, sharia plays a fundamental role in shaping and developing ethical norms and
values that can be reflected in general legislation and public policy through
the democratic political process. But… sharia principles cannot be enacted and enforced by
the state as public law and public policy solely on the grounds that they are
believed to be part of sharia. If such enactment is attempted, the
outcome will necessarily be the political will of the state and not the
religious law of Islam. The fact that ruling elites sometimes make such claims
to legitimize their control of the state in the name of Islam does not mean
that such claims are true. The fact that the state is not a religious
institution is the historical experience and current political reality of
Islamic societies… Dispelling the dangerous illusion of an Islamic state that
can enforce sharia is necessary for legitimizing and implementing the principles and
institutions of constitutionalism, human rights, and citizenship in Islamic
societies.8

CONCLUSION

As stated earlier, despite the clear distinction between sharia and
fiqh, it would be erroneous to point out that they are mutually exclusive
entities. It would be more correct to distinguish them by not using the terms
interchangeably because they are not interchangeable in the first place. The philosophy
of sharia is eternal and unchanging, whilst its application by means of fiqh is
dynamic in nature in order to be able to adapt to changing circumstances that
inevitably comes with the passing of time. Ergo, a prudent scholar would ultimately
recognise that we ought to unite our beliefs in line with the sharia, but to be broadminded and more
accepting between each other concerning disparities in fiqh.

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