Islamic Law between Syari`ah and Fiqh

A. Islamic Law between Syari`ah and Fiqh

In the discourse of law, some terms seem to be overlapping, which make them not only difficult to understand, but also lead to unintended errors. Those terms are Islamic law, Islamic Syari`ah, the Syari`ah, fiqh, Islamic Fiqh, and the law of Allâh. Among these terms, it seems that the term Syari`ah is the most popular so it gives birth to the terms of application of Syari`ah, a formalization of Syari`ah, and the like. The question arisen here is do these terms refer to the same notion?

Initially, the terms of Allâh’s law, Islamic law, Syari`ah and fiqh refer to the same notion, i.e., all legal provisions that were revealed from Allâh, either extracted from definite religious evidence ( qhath’iy al-dalalah) as well as from conjectural religious evidence ( dhanniy al-dalalah) regarding faith, morality, and everyday activities ( ‘amaliyah). Thus, everything believed to have come from Allâh is called Syari`ah, fiqh or the law of Allâh. In this sense, the law Initially, the terms of Allâh’s law, Islamic law, Syari`ah and fiqh refer to the same notion, i.e., all legal provisions that were revealed from Allâh, either extracted from definite religious evidence ( qhath’iy al-dalalah) as well as from conjectural religious evidence ( dhanniy al-dalalah) regarding faith, morality, and everyday activities ( ‘amaliyah). Thus, everything believed to have come from Allâh is called Syari`ah, fiqh or the law of Allâh. In this sense, the law

In the next development, in conjunction with the call to renew Syari`ah ( tajdid ash-Syari`ah), following the new notion that changes are allowed to occur in Islamic law according to the necessities of time ( al-azman), condition ( al-ahwal), environment (al-bi’ah), and the social context (az- zhuruf), an anxiety has spread in the Muslim world. This anxiety was roughly formulated in the following questions: “As Allâh’s law, Syari`ah and fiqh comes from Allâh, how can it be changed? But, if it doesn’t change while its social context changes, the law will then be abandoned”. The next questions arose: “Is it true that Allâh’s law cannot be changed? If it can be changed, which law?” That’s exactly the time when Muslim religious scholars began to distinguish Islamic law into two categories, Syari`ah and fiqh.

Syari`ah is a kind of Islamic law which is derived from definite Quranic verses or the Prophet’s hadith ( qath’iyyu ad-dalalah). Fiqh is a kind of Islamic law with its arguments gained through intellectual reasoning ( istinbath- ijtihad) from the conjectural sources (zhanniyyu ad-dalalah).

Islamic law of Syari`ah category generally has the following characteristics:

a. In general, it is in the form of the universal principles of religion, such as faith, justice, honesty, kindness ( at-thayyibat, al-khair, al-ma’ruf), immorality ( al-khaba’ist, al-bathil, al-fasid), permitted-forbidden (halal- haram), equality (al-Musawah), freedom (al-hurriyyah), accountability ( al-mas’uliyah), public benefit (al-Maslahat), and others.

b. Universal in nature ( al-usul-al-Kulliya), in the sense that it doesn’t change along with the changes of time and space.

c. Absolute in nature ( Qath’iyya), meaning it is abstracted directly from definite texts ( qhath’iyyu ad-dalalah), and therefore, undeniable.

d. No room for ijtihad, as it is believed to be part of the teachings described explicitly in the text of Syari`ah ( al-manshushah). In this regard, scholars of Usul Fiqh outline the rule la ijtihada muqabatali an-nass (no ijtihad before the definite texts). The Islamic law of fiqh category has several distinctive features as follows:

a. It is based on the Qur’an and the hadith, either directly or indirectly, a. It is based on the Qur’an and the hadith, either directly or indirectly,

b. It is comprehensive, in the sense that it comprises the whole set of human behaviors that includes human relationship with Allâh, with their fellow human beings, as well as their relationship with their society and the environment.

c. It is normative and moralistic, in the sense that all the provisions of fiqh aim to uphold the primacy of morality and noble character in order to create stability in human society.

d. Proportional, it protects individual and collective benefits intact and balanced. When contradiction occurs between the two, it chooses collective benefit to be at front.

e. It is elastic and flexible. Fiqh, as the product of ijtihad, tends to change and to be disputable.

f. It is both dunyawiyah (earthly) and ukhrawiyah (heavenly) in its nature, in the sense that obedience or violation in the implementation of fiqh law has both good and bad implications in the world and the hereafter.

g. It is contextual, relative, temporal, and local, in the sense that verity in fiqh is related to time, place, and all circumstances and conditions.

A point to be noted is that the Islamic law category of Syari`ah cannot change, cannot be replaced even if the circumstances, condition, and time continuously change. In this regard the principle of al-hukmu yaduru ma’a illatihi wujudan wa ‘adaman (law exists or does not exist depending on reason or cause), also the rule la yunkaru taghayyuru al-hukmi bi taghayyuri bi al- ahwal, al-amkan wa, wa al -azman, wa al-bi’ah (any legal changes caused by change of conditions, place, time, and environment cannot be denied) is not applicable. Meanwhile, Islamic law of fiqh category is quite the opposite, because it is local ( mahalliyah), temporal (waqtiyah), situational (zamaniyah) and alterable ( al-mutahawwilat wa al-mutaghayyirat).

Syari`ah is often interchangeable with fiqh and vice versa. This can cause problems if we are not fully aware that fiqh is a dimension of Islamic law Syari`ah is often interchangeable with fiqh and vice versa. This can cause problems if we are not fully aware that fiqh is a dimension of Islamic law

be changed. Nevertheless, as explained in previous discussions, although Syari`ah is qhat’iyu ad-dalalah (definite religious evidence) but at the level of the application ( tathbiqiya) it remains zhanni(conjectural). That is, it is very likely that Islamic law category of Syari`ah to be irrelevant in a particular context, so that ijtihad istislahi, based on maqashidu ash-Syari`ah, can work as a solution to the legal vacuum.

The two terms, application of Syari`ah and formalization of Syari`ah, used today often do not mean the Syari`ah in the above sense, but rather in the sense of Syari`ah as fiqh. Therefore, the intended application of Syari`ah is essentially the application of fiqh or its formalization, which is actually dynamic, tentative, relative and local. For example, when Aceh applied Qanun Syari`ah, a question raised, “Which version of Syari`ah takes place? Does it a version by al-Shafi’i, Abu Hanifa, Malik, Ahmad Bin Hanbal or others? Or a mix of all?” Formalization of Syari`ah which is then understood as the standardization of fiqh has become problematic, since ijtihad space once was wide open in fiqh is now closed, because it is understood as Syari`ah which is absolute and universal. Application of Islamic Syari`ah law should take into consideration this dimension of the universal law, but also take into consideration the dimension of fiqh which is local and not immune to change due to differences in circumstances, conditions and environment in anywhere the application of the law occurs.