By Abu Amina Elias
In the name of Allah, the Beneficent, the Merciful
The Sharia is the collection of values and principles derived from the Quran and Sunnah that form the moral, religious, and legal teachings of Islam. It is distinguished from Fiqh (jurisprudence) which is the practical application of those principles in real life. In other words, the Sharia may be called the spirit of the law, while Fiqh may be called the application of the law.
The values and principles of the Sharia have been mentioned by great Muslim scholars of the past.
Ibn Al-Qayyim wrote:
فَإِنَّ الشَّرِيعَةَ مَبْنَاهَا وَأَسَاسُهَا عَلَى الْحِكَمِ وَمَصَالِحِ الْعِبَادِ فِي الْمَعَاشِ وَالْمَعَادِ وَهِيَ عَدْلٌ كُلُّهَا وَرَحْمَةٌ كُلُّهَا وَمَصَالِحُ كُلُّهَا وَحِكْمَةٌ كُلُّهَا فَكُلُّ مَسْأَلَةٍ خَرَجَتْ عَنْ الْعَدْلِ إلَى الْجَوْرِ وَعَنْ الرَّحْمَةِ إلَى ضِدِّهَا وَعَنْ الْمَصْلَحَةِ إلَى الْمَفْسَدَةِ وَعَنْ الْحِكْمَةِ إلَى الْبَعْثِ فَلَيْسَتْ مِنْ الشَّرِيعَةِ وَإِنْ أُدْخِلَتْ فِيهَا بِالتَّأْوِيلِ
Verily, the Sharia is founded upon wisdom and welfare for the servants in this life and the afterlife. In its entirety it is justice, mercy, benefit, and wisdom. Every matter which abandons justice for tyranny, mercy for cruelty, benefit for corruption, and wisdom for foolishness is not a part of the Sharia even if it was introduced therein by an interpretation.
Ibn Al-Qayyim also wrote:
قَدْ بَيَّنَ سُبْحَانَهُ بِمَا شَرَعَهُ مِنْ الطُّرُقِ أَنَّ مَقْصُودَهُ إقَامَةُ الْعَدْلِ بَيْنَ عِبَادِهِ وَقِيَامُ النَّاسِ بِالْقِسْطِ فَأَيُّ طَرِيقٍ اُسْتُخْرِجَ بِهَا الْعَدْلُ وَالْقِسْطُ فَهِيَ مِنْ الدِّينِ وَلَيْسَتْ مُخَالِفَةً لَهُ
Allah the Exalted has made clear in his law (sharia) that the objective is the establishment of justice between His servants and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.
Source: Turuq Al-Hukmiyyah 13
According to Ibn Al-Qayyim, the values of the Sharia are the following:
Any Islamic law whose application contradicts these core values cannot be considered the Sharia, even if it is based upon the literal application of some verses of the Quran or the Prophetic traditions.
From these core values, scholars have derived the legal objectives of the Sharia (maqasid) that correspond with the welfare of human beings.
لكننا نعنى بالمصلحة المحافظة على مقصود الشرع ومقصود الشرع من الخلق خمسة وهو أن يحفظ عليهم دينهم وأنفسهم وعقلهم ونسلهم ومالهم فكل ما يتضمن حفظ هذه الأصول الخمسة فهو مصلحة وكل ما يفوت هذه الأصول الخمسة فهو مفسدة
Welfare which we mean here is the protection of the objectives of the Sharia. Namely, the objectives of the Sharia are five in creation: the protection of religion, life, intellect, family relations, and property. Everything that advances the protection of these five fundamentals is considered benefit, and everything which fails to protect these five fundamentals is considered corruption.
Source: Al-Mustasfa min Ilm al-Usul 287
According to Al-Ghazali, laws derived from the moral philosophy of Sharia should protect the following basic human rights:
Any Islamic law whose application fails to protect these basic rights cannot be considered the Sharia, even if it is based upon the literal application of some verses of the Quran or the Prophetic traditions.
The distinction between the Sharia and Fiqh is of paramount importance in Islamic legal thought, just as Western jurists would distinguish between the letter of the law and the spirit of the law. Professor Mohammad Hashim Kamali explains this important distinction:
It was in view of the legal character of Sharia that many have described it as “God’s commandments related to the activities of man,” of which those that are related to ethics are taken out and classified under morality (adab and akhlaq). Fiqh is the legal science and can sometimes be used synonymously with Sharia. The two are, however, different in that Sharia is closely identified with divine revelation (wahy), the knowledge of which could only be obtained from the Quran and Sunnah. Fiqh has, on the other hand, been largely developed by jurists and consists of rules which are mainly founded on human reasoning (ijtihad). Sharia is thus the wider circle, and it embraces in its orbit all human actions, whereas Fiqh is narrower in scope and addresses mainly what is referred to as practical legal rules (al-ahkam al-‘amaliyyah). The path of Sharia is laid down by God and His Messenger; the edifice of Fiqh is erected by human endeavor.
Source: Shari’ah Law: An Introduction by Mohammad Hashim Kamali
Because of this distinction, Islam allows for a diversity of opinion in legal matters. Thus, it cannot be said that the Sharia is a single code of law to be imposed upon all people. Rather, the philosophy of Sharia remains unchanging, while it application can change in time and place according to the given circumstances. This is how Islamic law was understood by Muslim scholars during its formative period.
Professor Kamali explains:
Muslim scholars have generally regarded Fiqh as understanding of the Sharia, and not the Sharia itself; a certain distinction between them had thus existed from the formative stages of Fiqh. Note, for example, that the leading schools of law that were developed in the first three centuries were all known as the schools of Fiqh. They were not known by any such terms as the Hanafi Sharia, or the Shafi’ee Sharia but consistently as Hanafi Fiqh, Shafi’ee Fiqh, and so forth. The underlying message was one of unity in reference to Sharia but of diversity with regard to Fiqh.
Source: Shari’ah Law: An Introduction by Mohammad Hashim Kamali
Because diversity of opinion exists within Islam, it is therefore not permissible for a religious jurist to force his personal religious opinions on all other Muslims. In fact, the Caliph Al-Mansur wanted to compel every Muslim to follow the law school of Imam Malik, but Malik rejected his request.
Malik ibn Anas reported: When Abu Ja’far Al-Mansur performed the pilgrimage, he called me, so I entered upon him and he spoke to me and he asked me questions and I replied. Then he said, “I am determined to have several copies made of these books of yours (meaning, the Muwatta). I will send a copy to every region in the lands of the Muslims and I will command them to adhere to its contents without referring to any other, and they will set aside everything but this new knowledge. Indeed, I see the foundation of knowledge in the narrations of the people of Medina and their teachings.” I said:
يَا أَمِيرَ الْمُؤْمِنِينَ لَا تَفْعَلْ هَذَا فَإِنَّ النَّاسَ قَدْ سَبَقَتْ إِلَيْهِمْ أَقَاوِيلَ وَسَمِعُوا أَحَادِيثَ وَرَوَوْا رِوَايَاتٍ وَأَخَذَ كُلُّ قَوْمٍ مِنْهُمْ بِمَا سَبَقَ إِلَيْهِمْ وَعَمِلُوا بِهِ وَدَانَوْا بِهِ مِنَ اخْتِلَافِ النَّاسِ وَغَيْرِهِمْ وَإِنَّ رَدَّهُمْ عَمَّا اعْتَقَدُوهُ تَشْدِيدٌ فَدَعِ النَّاسَ وَمَا هُمْ عَلَيْهِ وَمَا اخْتَارَ أَهْلُ كُلِّ بَلَدٍ لِأَنْفُسِهِمْ
O leader of the believers, do not do this, for verily, the people have received sayings, heard narrations, and transmitted various accounts. Each people holds to what it has received and acts according to it. They deal with their differences accordingly and, indeed, to turn them away from their beliefs would be very difficult, so leave the people with what they are upon and with what the people of every country has chosen for themselves.
Source: Tabaqat Al-Kubra, Ibn Sa’d 1/441
Likewise, Ibn Taymiyyah reports that Malik said:
لَيْسَ لِلْفَقِيهِ أَنْ يَحْمِلَ النَّاسَ عَلَى مَذْهَبِهِ
It is not for the jurist (faqih) to compel the people to adopt his school of thought.
Source: Majmu’ Al-Fatawa 30/80
And Ash-Shafi’ee would say:
مَذْهَبَنَا صَوَابٌ يَحْتَمِلُ الْخَطَأَ وَمَذْهَبَ مُخَالِفِنَا خَطَأٌ يَحْتَمِلُ الصَّوَابَ
Our school of thought is correct but could possibly be mistaken, and the school of thought which differs from us is mistaken but could possibly be correct.
Source: Fatawa Al-Kubra of Al-Haythami 4/313
In conclusion, the Sharia is the divine law embodied in timeless moral values, but Fiqh is the human effort to apply these values to real-life situations. Sharia is divine and unchanging, whereas Fiqh is human effort that may or may not agree with the Sharia. Muslims have been commanded to unite upon the Sharia but to be tolerant among each other regarding differences in Fiqh.
Success comes from Allah, and Allah knows best.