The difference between Shari’ah (Canon law) and fiqh (Canonical Jurisprudence) is not well known as these two terms are frequently used synonymously. The linguistic meaning of the word Shari’ah is a non-exhaustive source of water from which people satisfy their thirst, while fiqh implies having a deep understanding.
Simply put, Shari’ah is the divine law, as stated in crystal clear terms in the Qur’an and the Sunnah, while fiqh is the law derived by fuqaha (jurists) from these two sources according to a specified ijitehadi methodology (Usul-ul Fiqh) comprising qiyas (analogical deduction), ra’y (subjective opinion), istehsan (moral or social preference), istidlal (inference), maslaha al-mursaleh (public interest), ijma’ (consensus of opinion), and several other methods of deductive reasoning. The Shari’ah comprises only about 30 ayat ul-ahkam (verses containing ordinances - nasus) of the Qur’an and about 70 sayings of the Apostle of Allah, upon whom be peace, bearing upon various socio-political aspects of community life.
In comparison, by far the larger part of fiqhi rulings are the outcome of above listed deductive methods of reasoning. The great fuqaha of the past arrived at their legal findings on the basis of a very deep and conscientious study of the Qur’an and hadith but nevertheless, the results of such study were highly subjective and time-bound. Originally, all such rulings were intended by the authors to facilitate the application of Shari’ rulings to the specific questions of their time. Subsequently, fearing lest the cultural influences of the newly conquered territories - such as Neo-Platonic philosophy and Graeco-Roman ideas - corrupt the pristine purity of Islam and the unanimity of Muslim outlook, the great scholars of the first two centuries of Islam (AH) had extended the clearly stipulated nass ordinances of the Divine Law by additional corpus jurus derived from the Qu’ran and Sunnah by means of deduction.
But the great jurists never intended that their rulings were relevant for all times. However, later generations of Muslims came to regard their rulings as sacrosanct and as an integral part of the Shari’ah.
Little do some people realize that elevating anything else to the level of the Qur’an and Sunnah is tantamount to committing a sin.
The limited scope of the explicit ordinances (nasus) of the Qur’an and the Sunnah was deliberately meant to provide an essential safeguard against legal and social rigidity. To ensure the eternal relevance of His Final Message to mankind, Allah subhanahu wa ta’ala had provided for an in-built mobility and flexibility. By providing a small, concise and precise volume of His Divine Law, He had, as it were, staked out the legal boundaries within which the community can develop and flourish in concord with the requirements of changing times.
The Shari’ ordinances (nasus) are by their very nature self-evident (zahir) and not open to conflicting interpretations. The Law-Giver intended them to be accessible to every believer’s direct understanding. It is only in the nasus of Qur’an and Sunnah that collectively constitute the real, eternal Shari’ah of Islam.
The Shari’ah in its entirety refers either to obligatory acts (fardh), the omission of which constitutes a sin; or to forbidden acts (haram), the commission of which constitutes a sin. Whereas the larger area of things and activities which the Law Giver has left unspecified - neither enjoining nor forbidding them in categorical terms - must be regarded as permissible (mubah) from the Shari’ point of view.
The Shari’ah cannot be changed because it is the Divine Law. In fact, there is no need to change it, simply because it legislates only with regard to those aspects of human life which by their very nature are not subject to change. Moreover, all the Shari’ ordinances are so formulated that they can be applied to every stage of man’s social and intellectual development. However, because of its brevity, the Shari’ah cannot - nor was it ever intended to - provide detailed legislation for every contingency of life. On the other hand, whenever changes were indispensable for human progress (for example, in matters of administration, technology, economic legislation etc), the Shari’ah either lays down general principle only or refrains from making any legal enactment.
This is where there is room for ijtihad (independent reasoning) in consonance with the spirit of
Islam. It must, of course, be understood that ijtihadi legislation (fiqh) that is evolved under the inspiration of the Qur’an and Sunnah (occasionally even with the help of the ijtihad of past generations) will always be subject to amendment by the ijtihad of subsequent generations. That is to say, this legislation can amount to no more than a temporal, changeable law.
To be more specific, the legitimate field of the community’s lawmaking activity comprises (a) working out of details in cases and situations where the Shari’ah provides a general principle but no detailed rulings, and (b) establishing principles and working out details with regard to matters which are permissible (mubah) and thus not covered by the Shari’ laws at all. Referring to this activity the Qur’an says: ‘For everyone of you We have ordained a Divine Law and an open road’ (Al-Qur’an 5:48).
Thus, while the Divine Law (Shari’ah) - delineates the area within which Muslim life may develop, Allah subhanahu wa ta’ala has conceded to us, within this area, an open road (minhaj) for ijtihadi temporal legislation which could cover the contingencies deliberately left untouched by the ordinances (nasus) of the Qur’an and the Sunnah. The difference between fiqh and modern law is that the former cannot ignore the moral values of the Qur’an and Sunnah. Thus, fiqh is not opposed to modern law as long as it protects man’s dignity and does not go against the fundamental moral values of Islam.
A rediscovery of the ‘open road’ of Islam is urgently needed at a time when the Muslim world finds itself in the throes of a cultural crisis in the face of a powerful multipronged western assault on its values and institutions. Any attempt by a Muslim country to reorganise itself on true Islamic lines invariably arouses apprehensions of its aggressive adventures toward the non-Muslim world. The west then creates all sorts of obstructions in that Muslim country’s way toward achieving this ideal. One of the techniques used is to support the introduction of a deviant, ‘liberal’, capitalistic Islam. Unless the Muslim world is able to mount an effective multifaceted response to this western challenge, it may affirm or deny, for centuries to come, the validity of Islam as a practical proposition. This response to the western challenge can only be posed by enlightened Muslims and not by the rigid, pedantic fundamentalist forces who merely emphasize Islam’s outward physical forms while ignoring its inner creative spiritual fervour. In fact, the western powers covertly favour fundamentalist Muslims because they believe that they tend to discredit Islam in the eyes of the world.
Muslimedia: October 16-31, 1998