INTRODUCTIONThe sharia is the compendium of beliefs and ideals which originate fromthe Quran and Sunnah that comprise the ethical, pious, and legitimate philosophies ofIslam. It is differentiated from fiqh (jurisprudence) which is the appliedfunction of those philosophies in the physical realm. In other words, the sharia can be referred to as the soul oressence of the law, whilst fiqh can bechristened the interpretation of the law. The difference between the sharia and fiqh is of supreme consequence in Islamic legal theories andideologies, which is akin to the manner in which Western jurists would differentiatethe literal wording of the law from the contextual and purposive interpretationof the law. It is important, however, to encourage Muslims to unite upon the sharia but to be tolerant amongst eachother regarding disparities in fiqhfor the reasons displayed in the remainder of this essay.A BRIEF OVERVIEW OF SHARIA ANDFIQHThe terms sharia and fiqh are, bydefinition, 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 theQuran, the laws revealed to Prophet Mohammad (peace be upon him) and the lawsderived from the lifestyle of the Prophet (peace be upon him). Since sharia is strictly derived from the Quranand Sunnah, its nature remains indomitable and abstract. On the other hand, Kamali statesthat fiqh is “knowledge of thepractical rules of shariah acquiredfrom the detailed evidence in the sources”1.In other words, fiqh is indirectly consequentialfrom the Quran and Sunnah, with a specific view to address concerns not expresslyaddressed by the sharia. THE DISTINCTION BETWEEN SHARIAAND FIQHKhaled Abou El Fadl describes thedifference between sharia and fiqh as follows: It is God’s Will in an ideal andabstract fashion, but the fiqh is the product of the humanattempt to understand God’s Will. In this sense, the sharia isalways fair, just and equitable, but fiqh is only an attemptat reaching the ideals and purposes of sharia (maqasid al-sharia).
The conceptual distinction between sharia and fiqh wasthe product of a recognition of the inevitable failures of human efforts atunderstanding the purposes or intentions of God.2Three primary differences exist betweenfiqh and sharia: firstly, shariais static in nature whilst fiqh issubject to change depending on the circumstances; secondly, sharia addresses concerns in a broad andgeneralised manner whilst fiqh tendsto 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 tostrive towards righteousness. Conversely, fiqhinevitably modifies with time because our human concepts of righteousness and virtuousnesschange in accordance with time and context.Incontemporary discourses, especially in a legal advocacy setting, it is veryimportant to keep the two terms fiqh and sharia distinct. Sloppyuse of the term sharia can (and does) generate unnecessary resistance towhat otherwise would be legitimate and uncontroversial assertions. It isunnecessarily provocative to advocate, for example, changing or reforming sharia,because this implies that God’s Law is not itself already perfect, a suggestionlikely to generate resistance from many Muslims. But advocating a change orreform of fiqh is quite a different matter, because fiqh isfallible, and in fact its many manifestations already reflect the considerationof a variety of different social norms.
In short, sharia (God’s Law)cannot be questioned by Muslims, but our understandings of sharia— namely, thefiqh rules—are always open to question.3The purpose of sharia hereis similar or parallel to that of natural law allusions, whereby concurring to thenatural law theory, there is an imprecise line between the concept of law andthe concept of morality. Recently, Abdullahi An-Na’im has made the provocativeargument below: ..
.Precisely because sharia issupposed to be binding on Muslims out of religious conviction, a believercannot be religiously bound except by what he or she personally believes to bea valid interpretation of the relevant texts of the Qur’?n and Sunnah. Yet,given the diversity of opinions among Muslim jurists, whatever the state electsto enforce as positive law is bound to be deemed an invalid interpretation ofIslamic sources by some of the Muslim citizens of the state.4This is especially true inconsideration of the inevitable difference of opinion that results fromenforcing fiqh in real-life scenarios.
Moreover, such “objections to theenforcement of sharia through positive law and the notion ofan Islamic state do not, of course, preclude Muslims from personally conformingwith every aspect of sharia.”5Part of the beauty of—as well as a sourceof frustration in—Islamic law is the plethora of positions and interpretationsin jurisprudence. This underlying precept adds to the confusion: while Islamiclaw attempts to moralize legal actions and formalities by placing them in thecontext of religion and morality, it tends to discourage the formalization orlegislation of the religious and moral precepts. The very fact that the sharialaw has to be recreated through the fiqh?basedapproach with its various schools of thought testifies to this assertion.6In other words, the sharia-based approach to Islamic lawcannot 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 toIslamic law, sharia must not be muddled or confused with fiqh, or any other definite ethical andpropositional concept, or any constitutional proposition for a purelyIslamic law abiding state. Nonetheless, fiqh can serve as anaid in coming to understand divine law insofar as it enables us to obtainfurther, dialectical insight into that which transcends positive law via meansof discursive reasoning and rational understanding. In other words, sharia and fiqh, which are individually and collectively intrinsic to theIslamic 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 shariaand fiqh that exemplifies, from anepistemic viewpoint, a contention between propositional comprehension and’knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ inaccordance with the teachings of Shihab al-Din Suhrawardi: “The insight thattranscends words cannot be attained except by means of words; what cannot bespoken of becomes manifest in the very act of speaking.
“7Hence, it is held within reason that the Islamic state cannot operatebased 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 comprehensionof what is normative, dogmatic and illustrative. For instance, the reasoningmade by An-Na’im exemplifies the necessity and importance of fiqh,particularly in consideration of its effectiveness in legitimising sharia:Whenobserved voluntarily, sharia plays a fundamental role in shaping and developing ethical norms andvalues that can be reflected in general legislation and public policy throughthe democratic political process.
But… sharia principles cannot be enacted and enforced bythe state as public law and public policy solely on the grounds that they arebelieved to be part of sharia. If such enactment is attempted, theoutcome will necessarily be the political will of the state and not thereligious law of Islam. The fact that ruling elites sometimes make such claimsto legitimize their control of the state in the name of Islam does not meanthat such claims are true. The fact that the state is not a religiousinstitution is the historical experience and current political reality ofIslamic societies.
.. Dispelling the dangerous illusion of an Islamic state thatcan enforce sharia is necessary for legitimizing and implementing the principles andinstitutions of constitutionalism, human rights, and citizenship in Islamicsocieties.8CONCLUSION As stated earlier, despite the clear distinction between sharia andfiqh, it would be erroneous to point out that they are mutually exclusiveentities. It would be more correct to distinguish them by not using the termsinterchangeably because they are not interchangeable in the first place. The philosophyof sharia is eternal and unchanging, whilst its application by means of fiqh isdynamic in nature in order to be able to adapt to changing circumstances thatinevitably comes with the passing of time. Ergo, a prudent scholar would ultimatelyrecognise that we ought to unite our beliefs in line with the sharia, but to be broadminded and moreaccepting between each other concerning disparities in fiqh.