The legal system defined by Islam has an exclusive nature when we look at the legal systems that govern the modern states. The base of this system is the divine revelation and reason, presented in the form ofShariah and Fiqh. Shariah being derived from the divine sources itself, defines the righteous path while Fiqh, which is the product of human reason, set paths for the solutions of particular and unprecedented issues in the light of already defined core principles. Shriah is derived from the basic sources, Quran and Sunnah. Nusus, the fundamental principle of Shariah, are however small in number. Only 3 percent of the verses of Quran directly deal with the legal matters of diverse nature; from crime to commerce and from marriage to divorce. Most of the Shariah as a wider concept is not limited to laws but it includes theology and moral teachings. It regulates of the whole society as well as individuals. However, Fiqh is more like positive law concerning – mainly – the individual conduct. Although it shares common grounds with Shariah, the rules defined are not legally enforceable. In short, Shariah has the higher authority in Islamic Legal System and at the same time, Fiqh is the pragmatic legal principles to enforce the rules defined by Islam. What follows is the contrast of Shariah and Fiqh, a brief history of development of Islam legal system and the objectives of Shariah/ Maqasid al-Shariah.
Shariah provides firm principles that regulate the fundamentals of Islam like prayers. It also clearly defines what is lawful and unlawful as well as some rules civil rules like hudood and punishment for major crimes. Yet most civil transections aka. muamalat like criminal code and government and economic policy matters are flexibly addressed by providing basic principles. Fiqh which is the pragmatic knowledge of Shariah, evaluates the issues on the basis of five principles: obligatory, recommended, permissible, reprehensible, and forbidden. Though the course of Fiqh is also guided by Quran and Sunnah, it also involves – to a particular extent – independent reasoning and intellectual exertion called Ijtihad. The Jurist who masters Arabic and the knowledge of basic legal source and is suitable enough to use intellectual reasoning to deduce rules from Shariah is knowledge, is called Mujtahid. When it comes to Fiqh, there are two types of rules. One are the self-evident rules about the fundamental principles of Islam like worship, marriage, relations, in inheritance which are independent of interpretation as they are explicitly mentioned in the basic sources. These rules of Fiqh overlap with Shariah. Second part is the reason based laws deduced by the Mujtahids which can be fallible as they are not self-evident according to Quran and Sunnah. These rules can be disputed. However, when such a rule is general accepted by consensus aka. Ijma, it takes the binding form in Shariah or becomes ruling aka. Hukum. There are a number of schools of Fiqh that differs on the basis civil transactions aka. muamalat while agreement is found in devotional matters aka. ibadat.
Shariah was developed during the two decades of Prophet Muhammad’s (PBUH) prophethood while Fiqh developed throughout the Islamic history. The main stimulus was compilation of Hadith. As divided into different eras, first one is 610-32 CE when revelation was continuing and Prophet was alive to explain it, with no need of Ijtihad. The second era is 632-61 CE, the era of Companions of the Holy Prophet. They tried to explore not only the meaning but the rationale of Quran. Due to their firsthand knowledge of the Prophet’s teachings, they are considered authorities in this field. Third period if 661-750 CE aka. the era of Successors. It was the time, two schools of thought emerged – Traditionalists (Ahl al-Hadith), in Hejaz, and the Rationalists (Ahl al-Ray), in Iraq – as a result of challenges due to the territorial expansion of Umayyads. While, Traditionalists stuck to the basic sources and principles, Rationalists promoted use of reason outside the realm of devotional matters and defined guidelines to for this purpose. Meanwhile, Shiite School emerged with different doctrines and emphasis of the political authority of Ali and descendants of Holy Prophet. In 750-950 CE, the era of independent reasoning, four school emerged. A relatively liberal Hanafi school based on Abu Hanifah’s personal opinion and juristic preference aka istihsan, a more open Traditionalist Maliki with on Medinan Ijma, an intermediate school Tradition and Reason called Shafii School, and a reactionary Traditionalists Hanbali school which can be seen as predecessor of Wahabi school of thought. The fifth 9 centuries long phase, started around 950 was era of initialization and following aka. Taqlid. Sharp political and economic transformation of Muslim societies especially colonization thwarted the development of Fiqh. The sixth phase that marks the rival of Shariah to meet the modern challenges started from 20th century. While Sunni Ijtihad halted, Shiites came up with collective Ijtihad in the absence of their divine Imam – a descendent of Prophet. According to them, a trained Mujtahid can act as a deputy aka naib of the Imam to deal with the challenges. In modern political and legal realities, the concept of Ijtihad is transformed into something called neo-Ijtihad, aided by statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings.
According to the Islamic tradition, the laws can be derived or formulated from a number of sources. The revealed sources are two. Quran is the fundamental source of legislation followed by the Sunna which are the saying, acts and tacit approval of Prophet Muhammad. The matter of recurrence and continuity aka tawatur of Prophet’s sayings – Hadith – has significant importance in the derivation of laws. Moreover, some Sunna called Sunna muassisa tend to address a scenario, which is otherwise, not discussed in Quran, making Sunna essential legal source. Quran, itself, legitimizes Sunna to be used as a source of legislation. The revelation, according to Sunni sources, has stop with the death of Prophet yet Shiite claim that it continues through the Imams. This peculiarity gives them the authority to formulate rules and principles yet not the changes in Islamic core doctrine. The unrevealed source is reason aka Ijtihad – a word that literally means striving. The analogical reasoning (qiyas) – not recognized by the Shiites, juristic preference (istihsan), considerations of public interest (istislah), and even general consensus (ijma) of scholars play an important role in lawmaking in Islam.
Purpose or goals are vital in explaining the significance of the law. The purpose of Shariah or Maqasid al-Shariah is to create an ideal society. The objective of Shariah is maslahah or the benefit of the society. It is evident from the goals preached in Quran that address compassion among individuals and guidance of mankind to a righteous path. As already mentioned, Shariah is not just a set of laws, but whole paradigm of life for Muslims or in a broader sense humans. Educating the individual or tahdhib al-fard is the top priority in Shariah as it tends to produce individuals who would help to achieve the objectives of Shariah. The objectives can be defined as social justice, equality before law, fulfillment of contracts, maintenance of social order etc. Shariah in the set boundaries tries to transform a person into agent of benefit for others. Even the most criticized element of Islam, Jihad, is meant to fight injustice and ignorance to bring about good in the life of people. Similarly, Zakat is to help the poor. Different schools of thought may have a different outlook on the components of Shariah but they inherently agree on the end goals.
When it comes to the classification of Maqasid al-Shariah, it is important to know that no such division was made in the earlier centuries of Islam. It was lmâm al-Haramayn al-Juwaynî in 11th century, who was classified the Maqasid al-Shariah im three categories that are essential, complementary and desirable (darûriyyât, hâjiyyât, tahsîniyyât). Darûriyyât are the essentials for the survival of a being as well as to maintain the order in the society. These are faith, life, lineage, intellect and property. In case, any of them collapses, a demise in the society follows. To strengthen them, Shariah promotes some values or goals. For example, trading is encouraged to ensure a good life while gambling or wine is punished because it is threat to the property. Hâjiyyât are of secondary importance and are implemented to aide Darûriyyât.These tend prevent the corrosion of social order in case stress of Darûriyyât passes beyond the limit. Yet these are the elements without which people can still survive. Punishments are devised to preserve the essentials while on the other hand, it allows bypass of essentials to ensure individual comfort. For example, Shariah allows people to have a divorce or skip prayer when the situation is not favorable. However, one Hâjiyyât can also be Darûriyyât when addressed at a large scale. For example, renting/İjarah may be of secondary importance for individuals but this system is essential for the society. Tahsîniyyât are more like disabilities rather than essentials. For example, proper attire at or use of perfume before prayer is desirable. Among all this, Shariah is rather flexible. In case a conflict arises among these befits or interest, the lesser can be sacrificed to protect the higher.
Obviously, Shariah is a wider topic and it cannot be completely addressed in a couple of pages. Yet it is important to know the basic framework of Islam legal system as explained above. With the increasing demand of Shariah by neo-conservative groups in the Muslim World, the significance of lawmaking in the light of Islam has become evident. It is a challenge for the Jurists to create laws that are equally compatible with the modernity, without breaking apart from (the Islamic) convention. For a jurists, it is important to know that Shariah is general framework of rules set by Islam addressing the whole society while Fiqh is what we call positive law, mainly focusing on the individual. There has been a history of lawmaking throughout Islam which can provide enormous case studies for legislation. Moreover, Shariah has defined objectives which are interdependent yet flexibly adjustable. As Muslims, we have to resume the process of lawmking by using reason for the modern challenges because it has become inevitable now!
*** Not a scholarly article; must not be used as a primary source.
 Law and Society: The Interplay of Revelation and Reason in the Shariah. p. 7