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Law and Society
THE INTERPLAY OF REVELATION AND REASON IN THE SHARIAH
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Mohammad Hashim Kamali
(Left) The Imam al-Shafii (d. 820) founded one of the four major Sunni schools of law. His tomb in the southern cemetery of Cairo became a focus of veneration; a large mausoleum, covered with a wooden dome, was erected over it in the early thirteenth century. The Shafii school of law is prevalent in Lower Egypt, southern Arabia, East Africa, Indonesia, and Malaysia.
Shariah and Fiqh: The Duality of Islamic Law
Islamic law originates in two major sources: divine revelation (wahy) and human reason (aql). This dual identity of Islamic law is reflected in its two Arabic designations, Shariah and fiqh. Shariah bears a stronger affinity with revelation, whereas fiqh is mainly the product of human reason. Shariah literally means “the right path” or “guide,” whereas fiqh refers to human understanding and knowledge. The divine Shariah thus indicates the path to righteousness; reason discovers the Shariah and relates its general directives to the quest for finding solutions to particular or unprecedented issues. Because the Shariah is mainly contained in divine revelation (that is, the Quran and the teachings of the Prophet Muhammad or the Sunna), it is an integral part of the dogma of Islam. Fiqh is a rational endeavor and largely a product of speculative reasoning, which does not command the same authority as Shariah.
Other devotional matters covered by the Shariah include burial. Outside a small mosque at Marbat, Oman, the graves of pious Muslims are aligned so that the deceased can rise and face Mecca on the Day of Final Judgment.
To say that the Shariah is contained in the Quran and Sunna, however, would exclude the scholastic legacy of fiqh and its vast literature from the Shariah. In fact, it is the clear injunctions of the Quran and the Sunna that provide the nucleus of the Shariah. The parts of the Quran that consist of historical data and parables, for instance, are not included. The specific rules of the Quran and the Sunna—collectively known as the nusus, which are relatively small in number—represent the core of the Shariah. Shariah is a wider concept than fiqh, however; it comprises the totality of guidance that God has revealed to the Prophet Muhammad relating to the dogma of Islam: its moral values and its practical legal rules. Shariah thus comprises in its scope not only law but also theology and moral teaching. Dogmatic theology (ilm al-kalam) is primarily concerned with liberating the individual from belief in superstition and inculcating faith in God and a sense of enlightened conviction in the values of Islam. Morality (ilm al-akhlaq) educates the individual in moral virtue, the exercise of self-discipline and restraint in the fulfillment of natural desires. Fiqh is concerned with practical legal rules that relate to an individual's conduct. Fiqh is thus “positive” law, and although much of it is in common with the Shariah, it does not include general guidelines on morality and dogma that are not legally enforceable. Yet jurists agree about the primacy of morality and dogma in the determination of basic values. By comparison, fiqh is described as a mere superstructure and a practical manifestation of commitment to those values.
The Shariah provides clear rulings on the fundamentals of Islam: its basic moral values and practical duties, such as prayers, fasting, legal alms (zakah), the hajj (pilgrimage to Mecca), and other devotional matters. Its injunctions on what is lawful and unlawful (halal and haram) are on the whole definitive, and so are its rulings on some aspects of civil transactions (muamalat). But the Shariah is generally flexible with regard to most civil transactions, such as criminal law (with the exception of the prescribed punishments or hudud), government policy and constitution, fiscal policy, taxation, and economic and international affairs. In many of these areas the Shariah provides only general guidelines.
Fiqh is defined as the knowledge of the practical rules of the Shariah, which are derived from the Quran and the Sunna. The rules of fiqh are thus concerned with the manifest aspects of individual conduct. The practicalities of conduct are evaluated on a scale of five values: obligatory, recommended, permissible, reprehensible, and forbidden. The definition of fiqh also implies that the deduction of the rules of fiqh from the Quran and the Sunna is through direct contact with the source evidence and necessarily involves a certain measure of independent reasoning and intellectual exertion (ijtihad). The ability to use the Quran therefore necessitates the knowledge of Arabic and a certain degree of insight and erudition that an “imitator,” or one who memorizes the rules without understanding their implications, could not achieve. A jurist (faqih) who fulfills these requirements and has the ability to deduce the rules of the Shariah from their sources is a mujtahid, one qualified to exercise independent reasoning.
The rules of fiqh may be divided into two types. First, there are rules that are conveyed in a clear text, such as the essentials of worship, the validity of marriage outside the prohibited degrees of relationship, the rules of inheritance, and so forth. These are self-evident and therefore independent of interpretation. This part of fiqh is simultaneously a part of the Shariah. Second, there are rules that are formulated through the exercise of independent reasoning in that part of the Quran and the Sunna that is not self-evident. Because of the possibility of error, the rules that are so derived are not immutable. They are not necessarily an integral part of the permanent Shariah, and the mujtahid who has reason to depart from them in favor of an alternative ruling may do so without committing a transgression. Only when juristic opinion and independent reasoning are supported by general consensus (ijma) does that reasoning acquire the binding force of a ruling (hukm) of Shariah.
The schools of law vary in their treatment of the contents of fiqh. Broadly speaking, the body of law is divided into two main categories: devotional matters (ibadat) and civil transactions (muamalat). The devotional matters are usually studied under the six main headings of cleanliness, ritual prayer, fasting, the hajj, legal alms, and jihad (holy struggle); the schools of law do not vary much in their treatment of these subjects. Juristic differences among the schools occur mainly in the area of the civil transactions, which are generally studied under the five headings of transactions involving exchange of values, equity and trust, matrimonial law, civil litigation, and administration of estates. Crimes and penalties are often studied under a separate heading (uqubat) next to these two main categories. The most detailed exposition of the entire range of fiqh remains the thirty-volume Kitab al-Mabsut by Shams al-Din al-Sarakhsi (d. 1083).
