The Notion of Shari’a, Arskal Salim
The role of law in Islam is frequently discussed though often misunderstood. In the following reading, Arskal Salim explains the distinction between shari'a and fiqh. Although shari'a is sometimes viewed as Islamic law, Salim suggests that this is an oversimplification.
Shari'a comes from God via portions of the Qur'an, some of which are clearly legal in character (from a European perspective) while others are more properly understood as addressing broader “principal values” of Islam. Shari'a is revealed, immutable, and universally applicable. Fiqh, on the other hand, should be understood as Islamic jurisprudence, an effort by fallible humans to interpret and apply legal principles - including but not limited to those found in the shari'a - in specific circumstances. It is more similar to law in the European sense of the word. As Salim explains, Islamic legal codes in modern states may partially overlap with both shari'a and fiqh.The Notion of Shari?a
Many proponents of the formal implementation of shari?a characterize Islam as essentially a legal phenomenon. This has much to do with the fact that many modern Muslim scholars emphasize only the legal subject matter in defining the shari?a. No wonder then that the term shari?a is used interchangeably with ?Islamic law.' Yet this is not really accurate.
There is a variety in the degree of emphasis as to how much, and what kinds of, shari?a is legal. Many Muslim scholars have, on the one hand, held that shari?a means ?law' in its Western conception, though they are aware that the respective sources of shari?a and Western laws are different. As they see shari?a as identical to the Western concept of law, the formal application of shari?a in a modern nation-state, for them, is reasonable. However, there are also those who hold that the application of shari?a requires a state that is distinctly structured to be a legitimate working operative of Islamic law.
On the other hand, there are other Western scholars and a few reformist Muslims who are of the view that only certain parts of shari?a can appropriately be classified as law because shari?a is mixed with non-legal elements. This point of view asserts that in shari?a there exists all of religion, morality, and law, and that early Muslim scholars never distinguished between these.
Legal subject matter actually constitutes only a moderate part of the Qur'an, the primary source of shari?a. Of the more than six thousand verses of the Qur'an, there are only about five hundred that are definitely legal subject matter. They can be classified into five areas: (ι) worship and rituals; (2) family matters; (3) trade and commerce; (4) crimes and punishments; and (5) government and international relations. However, according to Tahir Mahmood, these verses do not necessarily correspond with what in modern times is termed law. They “were supplemented, explained, interpreted and used as the basis for induction and deduction of legal rules” along the course of Islamic history. The Prophet, his companions, and the early Muslim jurists, one after the other, gradually developed the original law of the Qur'an into a wider legal fabric.
Between Shari?a and Fiqh
One has seen that there is a gap between God as lawgiver and human beings as lawmakers. [...] In my view, this gap is inevitable if one has the perception that religious law in Islam is a monolithic concept. One has to accurately distinguish between shari?a and fiqh (Islamic jurisprudence) since the latter is not equivalent to shari?a. In fact, not all of fiqh is shari?a. They are distinctly different concepts. [...]
[W]hile shari?a comes from God through those verses of the Qur'an which do not need further clarification, fiqh (which literally means understanding) on the other hand is the interpretations of human beings of those Qur'anic legal verses that have imprecise or multiple meanings.
Likewise, because shari?a is revealed, it takes only one form, while fiqh varies according to different individuals' reasoning. In addition, while it is imperative that shari?a be implemented, one can choose any legal understanding (fiqh) available and suitable to one's situation. Finally, shari?a is unchangeable and applicable to any time and any place, while fiqh is subject to change according to its local circumstances. These distinctions help to clarify that there are two distinct concepts of religious law in Islam, the immutable, transcendent shari?a and the mutable, temporal fiqh. In this sense, although it is still a much broader concept since it also deals with ritual worship, it is fiqh that is more comparable to what is currently called ?law,' and hence, when the term ?Islamic law' is used in this study it will refer mainly to fiqh, except when it is quoted from the work of another author.Two Kinds of Sharia
Despite the differences between shari?a and law and between shari?a and fiqh, exactly to what extent a rule or law can be identified as shari?a remains unresolved. However, it is important to emphasize here that shari?a in legal rules is not only seen in legal texts, but is being found more in the substantive content of the legal rules. Here we have at least two kinds of shari?a. First it is mostly a set of legal rules, and second it is substantially a collection of principal values. [...]
The two kinds of shari?a above are important in this study. Both help determine what kind of shari?a is relevant or irrelevant to the concept of the modern nation-state. Given that the main concern of what is called law, in the modern sense, as it pertains to religion, is merely the right to worship and perform rituals, I will argue that dissonance would be more likely to occur in response to the perception that sees shari?a mostly as legal rules, rather than the view that considers shari?a as a natural way of life or a collection of principal values. In present-day Indonesia, it appears that the notion of shari?a as legal subject matter has more support among the proponents of the formal application of shari?a.