The nature of law in
Islam has been variously conceived: is it divinely revealed, or socially
grounded? positive, or supernatural? immutable or adaptive? Disagreements seem to
stem from uncritical use of two equivocal concepts, shari'ah and fiqh.
Shariah is usually defined by
Muslim scholars as the body of “those institutions which Allah has ordained in
full or in essence to guide the individual in his relationship to God, his
fellow Muslims, his fellowmen, and the rest of the universe.”1
It may be compared in
certain respects to some denotations of the Western concept of natural law.”
According to the classical view, it is the basis for the moral judgement of
actions as good or bad, and thus it can come only from God.2
The term fiqh literally
denotes intelligence or knowledge. Technically, however, it is the name given
to jurisprudence in Islam. It does not designate the principal Islamic laws that
are to regulate all aspects of public and private life; rather, it is a
subsidiary science of those laws.
In older theological
language, the word “is applied to the independent exercise of the intelligence,
the decision of legal points by one’s own judgment in the absence or ignorance
of traditions bearing on the case in question.”3
Although fiqh is
the science of shariah and can often be used synonymously,4
the two concepts suggest to the Muslim mind analytically different but actually
related things.
Muslims speak freely
of different schools or madhahib of fiqh, but they do not refer
to shariah in the same way. To them, shariah is one
comprehensive system of law that is divine in origin, religious in essence, and
moral in scope. It does not exclude fiqh, but it is not identical with
it.
In contrast, fiqh
is a human product, the intellectual systematic endeavor to interpret and apply
the principles of shariah. At any rate, the referents of the two
concepts are readily distinguishable at least analytically.
The confusion arises
when the term shariah is used uncritically to designate not only the
divine law in its pure principal form, but also its human subsidiary sciences
including fiqh.
It is apparently in
this wide sense that the term shariah is usually translated as “Islamic
Law,” meaning both the pure principal provisions of the law and its applied
subsidiary sciences.
Consequently, those
who subscribe to the divine origin and the unchangeable essence of Islamic law
seem to mistake the general for the variant, that is, to view the whole legal
system of Islam as identical with shariah in its strict pure sense.
Similarly those who
subscribe to the social basis and the human character of Islamic law seem to
view the whole system as identical with one part thereof, that is, fiqh which,
strictly speaking, is human and socially grounded.
Much of this
confusion can probably be avoided If the analytical distinction between shariah
and fiqh is borne in mind and if it is realized that Islamic law is held
by Muslims to encompass two basic elements: the divine, which is unequivocally commanded
by God or His Messenger and is designated as shari’ah in the strict
sense of the word; and the human, which is based upon and aimed at the
interpretation and/or application of shariah and is designated as fiqh
or applied shariah“5
References
1. Shaltut (2), p. 5 (this writer’s
translation).
2. Shorter Ency. of Islam , pp. 524 ff.
3. Ibid . p. 102.
4. Ibid . p. 524.
5. In connection with this discussion,
see, for example, MadkQr (2), p. 11; Fayzee pp. 22 f.; Faruki, pp. 18 ff;
Khallaf, p. 282; Coulson (1), p. 85; Schacht (2); Santillana, p. 290; S h o
r te r E n c y . o f I s la m , pp. 102-7, 524-9.
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