In everyday parlance, the boundaries between shari’ah and fiqh are often blurred and confused. This blurring even occurs among scholars of Islam who often use the terms interchangeably or synonymously.
This confusion contributes to the generation of wide-ranging problems such as the improper distribution of inheritance and flawed financial services in modern society in ways that are detrimental to social relations and processes and institutional operations.
In addition, this blurred line between shari’ah and fiqh has caused some Muslims to abandon Islam and declare it a religion with barbaric rules and practices. It has led many to believe that fiqh is the command of Allah and caused conflicts between Muslims resulting in bloody feuds and even deaths.
Muslims practice their faith in a variety of ways, for example, they pray differently from one another not based on shari’ah but based on specific schools of thought. By blurring the line between shari’ah and fiqh many Muslim thinkers have been accused of heresy and being declared disbelievers because they adhere to a specific school of thought.
Thus, it is critical to distinguish between these two terms in order to clearly demarcate the divine and eternal from the human and temporal.
The conflation of ‘shari’ah’ and ‘fiqh’, it seems, is a recent phenomenon and to move towards true implementation of justice that is inspired by Qur’anic teachings and is an inherent component of the law, it is necessary to distinguish between the two concepts.
This includes recognising that shari’ah is both divine and eternal, while fiqh is a human-made endeavour or legal tool and open to change.
To start, shari’ah is the religious law of Islam understood to be the expression of Allah’s command for people but particularly for Muslims – the faithful. In application, shari’ah constitutes a system of duties that are mandatory on all Muslims by virtue of their proclamation in the unity of God and prophethood of Muhammad.
Shari’ah, literally meaning “the path leading to the waterhole”, represents a divinely ordained path of conduct that guides the faithful toward a practical expression of Islam in this world and the goal of divine favour in the hereafter.
Shari’ah, as a composite of rules and duties and Allah’s commandments related to all endeavours of human beings, is better understood with the help of an Islamic jurisprudential (jurisprudence is the science of law; the study of the theory of law which looks at the principles behind the law) tool known as fiqh.
Fiqh, which literally means “understanding” or “knowledge” is Islamic jurisprudence used to define rules and methodologies of law. It is the methodology employed to work out and apply the law.
Fiqh is a jurisprudential corpus mainly produced in the second and third centuries of Islam by the ulama (Muslim scholars), with unique methods of reasoning and argument (Hussain, 2011).
It effectively became the corpus of the shari’ah as developed from the canonical sources and implemented to address issues facing Muslims relating to their practices of worship and social relationships (Philip, 1996).
In essence, then, fiqh is a science of ascertaining a wholesome understanding of shari’ah and is a discipline that permits academic discussion and exegetical analysis of Islamic practice (Hussain, 2011).
Fiqh has a flexible framework which is both changeable and fixed rulings at the same time. Its aim is to gain a deeper understanding of the nature of law, of legal reasoning, legal systems, and of legal institutions.
Fiqh is essentially developed by jurists and comprise rules which are produced from human reasoning (ijtihad). It addresses what is referred to as practical legal rules (al-ahkam al-‘amaliyyah) and the edifice of Fiqh is erected through human endeavours.
1. Shari’ah is broad and wide ranging while Fiqh is narrow specifically addressing particular issues.
2. Shari’ah is fixed and can’t be changed while Fiqh is flexible and open to change in the light of new condition or information.
3. For Shari’ah the source is the Qur’an and Sunnah while for Fiqh the sources are: