The term “Islamic law” possesses inherent ambiguity. In the context of pre-modern Islamic discourse, it is noteworthy that there is an absence of a singular phrase that directly corresponds to the concept. Alternatively, two concepts that encapsulate the Muslim community’s dedication to divine law might be identified as Shari’ah and fiqh. It will be demonstrated that Shari’ah serves as unchangeable bedrock of the Islamic legal and moral framework, embodying fundamental principles of core values. In contrast, fiqh stands for the external presentation of the core values and, thus, the changeable aspect of Islamic law and jurisprudence.
Shari’ah
The term “Shari’ah” carries a divine significance. The term is often employed in a broad and inclusive manner, including many interpretations and practises associated with the Islamic faith, as it is perceived as being divinely ordained. It carries the connotation of God’s law, notwithstanding the obscure or inconsequential nature of its particulars. Shari’ah can be seen as a collection of divine commandments (aḥkām, singular ḥukm) that were given to mankind through the prophet Muḥammad and other prophets. The divine injunctions have been conveyed by God through His words as documented in the Quran, as well as through the Prophet Muhammad’s inspired sayings and exemplary conduct (Sunnah), as documented in the collections of hadith.
The Shari’ah, then, is God’s direction of a life of submission (islām) to Him, serving as the complete normative guide for Muslim way of living. The Shari’ah is also the basis and the ultimate reference point for the Islamic law and legal system. As a code spirited by rules believed to be set forth by the divine lawgiver, the Shari’ah embodies legal as well as moral domains that transcend temporal and state boundaries. For the Muslims, the Shari’ah includes morality, law, etiquette, and religion in one (Rudolph Peters and Peri Bearman 2014, 1-2).
Fiqh
The textual sources of the Quran and Sunnah serve as the foundational elements of the Shari’ah, requiring more processing before they can be readily applied. The process of formulating rules necessitates the inclusion of interpretation and reasoning in order to effectively express their intended meaning. The human endeavour referred to as fiqh, or jurisprudence, encompasses the interpretations and legal decisions drawn by jurists from the two types of fundamental texts. From a precise standpoint, the Shari’ah may be defined as a collection of divine mandates that are conveyed by God through the primary sources of the Quran and Sunnah. Fiqh, on the other hand, refers to the human effort to recognise and clarify these divine directives.
Fiqh, however, pertains to the scholarly endeavour of investigating, interpreting, scrutinising, and articulating legal principles, regardless of whether this occurs through written works, educational institutions, intellectual contemplation, or formal responses to particular inquiries. Writing fiqh, teaching and studying it, thinking (about) it, manipulating and applying its notions are all conceivable. In contemporary scholarly examination of Islamic jurisprudence, the term Shari’ah holds little utility, as the focus of research and description mostly revolves on the field of fiqh. Fiqh is primarily accessible to individuals through its literary legacy. However, underlying this heritage is a lineage of intellectual discourse and educational practises, driven by a desire to exert influence over societal norms and behaviours.
Types of Fiqh Literature
There exist two primary categories of fiqh literature, namely furu al-fiqh (branches) and usul al-fiqh (roots). The first category of texts delineates, or seemingly delineates, principles and regulations pertaining to behavior, as well as the corresponding debates around them. The primary themes encompassed within this text are purity, prayer, fasting, alms, and pilgrimage. These acts of worship, known as ‘ibadat, consistently occupy the first five sections of the furu work. Subsequently, the text delves into many subjects, including battle, marriage, divorce, inheritance, punishments, buying and selling, and judicial practices, albeit in a non-fixed sequence. The whole is a conceptual representation of social life; it does not necessarily aim to be comprehensive or useful, but rather strikes a balance between revelation, tradition, and reality—all three of which provide food for thought and serve as examples of the ideas (Calder 2008, 980-81).
The field of usul literature encompasses the identification of the sources of law that are considered to be divinely revealed, such as the Qur’an and Sunnah. Additionally, it includes auxiliary sources, like consensus (ijmā), as well as the hermeneutic disciplines that enable the intricate intellectual cross-referencing between revelation, tradition, and reality. This cross-referencing is exemplified in the study of furu, a branch of Islamic jurisprudence. The hermeneutic sciences encompass historical and biographical aspects, which pertain to the concepts of abrogation and the credibility of individuals transmitting Sunnah. Additionally, linguistic, rhetorical, and logical dimensions are also integral to these studies. The linguistic and rhetorical sciences were intricately expressed within the established tradition, sometimes organized under straightforward antagonistic categories such as command and prohibition, broad and specific, absolute and qualified, metaphor and truth, and so on. The utilization of logical reasoning in the interpretation of divine revelation typically involved the application of analogy, known as “qiyas,” and was subject to diverse developments across distinct schools of thought and individual scholars (Calder 2008, 982). The Shi’ite tradition had a tendency to dismiss analogy as a structured method for legal development, while shown a similar intricacy in employing alternative forms of logical argumentation. Apart from Qur’an and Sunnah, consensus of jurists (ijmā) and reason (aql) are considered as the sources of Shii law (Tabātabā’i, 1984, pp. 2-4).
A third category of literature exists that plays a significant function in the public dissemination of Divine Law. The term often referred to as “tabaqat” or “generations” is well recognized. These books of a biographical kind, organized in a diachronic manner, serve to illustrate the ongoing tradition and the moral and intellectual standing of the scholars involved. The content of their communication pertains to theological matters, but with a historical focus. Specifically, they argue that the lives and contributions of individual academics acquire value and importance by virtue of their position within a continuous lineage of legalistic thinking. The aforementioned statement reflects a prevalent theme in Islamic juristic literature, wherein individual jurists are not engaged in a solitary discourse with divine revelation, but rather inherit a rich legacy. The establishment of significance in revelation is contingent upon adherence to the respective tradition. The tabaqat literature serves the purpose of both defending and defining the heritage (Calder 2007, 982).
Ijtihād as the Hermeneutical Method
Books on usul often conclude with a comprehensive examination of ijtihād, a concept that denotes the exertion of much effort in order to ascertain a certain legal ruling by using hermeneutical principles. In the context of law, ijtihād takes on the definite meaning of a jurist “exerting the faculties [of the mind] to the utmost, for the purpose of forming an opinion in a case of law.”(Lane, 1984, 1:473.) Ijtihād is interpretative method, the processes of reasoning that the jurist employed in order to arrive at the best understanding of what he thought might be the law pertaining to a particular case. Except for a relatively few Quranic and Prophetic statements which were unambiguous and which contained clear and specific normative rulings, the rest of the Islamic law is the product of ijtihād.
Islamic law is predominantly derived from the process of ijtihād, which is a method of interpretation based on the concept of probability. Every proficient legal scholar has the ability to engage in ijtihād, a process of independent legal reasoning. The determination of which mujtāhid, or legal scholar, was accurate in their interpretation was known alone by God. This concept of pluralism has resulted in the well-known principle and aphorism that “Every mujtāhid is correct.”
Islamic Law and Pluralism
Ijtihād has bestowed to Islamic law one of its distinctive features. In relation to any possible scenario or circumstance, as well as for every specific collection of facts, a range of opinions exists, varying from two to several, or even more, each upheld by a distinct legal expert. In contrast to the circumstances that exist in the modern state, there is not a single legal provision that possesses monopoly or exclusivity. Islamic law is characterized by legal pluralism, since it recognizes and considers local customs, while also providing a range of viewpoints on a given set of circumstances. The presence of pluralism within Islamic law has contributed significantly to the development of two key characteristics. Firstly, it has fostered a sense of flexibility and adaptability, enabling the law to accommodate diverse societies and regions. Secondly, it has facilitated the evolution of Islamic law over time. This evolution occurs through the selection of opinions that are deemed more suitable for specific circumstances, as well as the creation of new opinions when necessary (Hallaq, 2009, 27). Therefore, claims that Islamic law is unbending and inflexible are false and misguided.
References:
Calder, Norman. (2007) “Law,” ch. 57 in A History of Islamic Philosophy, ed. S.H. Nasr, O. Leaman. New York: Routledge. 979-998.
Hallaq, W.B. (2009). Introduction to Islamic Law. New York: Cambridge University Press.
Lane, E.W. (1984). Arabic-English Lexicon vol. 1. Cambridge: Islamic Texts Society.
Peters, Rudolph and Bearman, Peri. (2014). “Introduction” to The Ashgate Research Companion to Islamic Law. Ashgate.
Tabātabā’i, H. M. (1984). An Introduction to Shi’i Law: a Bibliographical Study. London: Ithaca Press.
