Shari’a literally means ‘the clear way’ or ‘path’. It is a term of Arabic origin used to refer to the place from which people and animals drink water. The derived Arabic verb (Sha ra‘a) means ‘revealing truth’ (izhar al-haq) and ‘refuting falsehood’.14 This is why the term ‘Shari’a’ was used in the Islamic context to describe the rules of
12 Yūsuf al-Qaradawi, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Wahba Library, 5th ed, 1997) 47.
13 Mana’ al-Gatan, Tarikh al-Tashri’ al-Islami, above n 3, 13.
14 Ibn Manzur, Lisan al-Arab (Dār al-Ma’ ārif) 2238-2239.
25 Islam that are believed to contain the truth which is best for humankind in this life and in the Hereafter.15 In the Qur’an, the term Shari’a denotes the rules of Islam:16
Then We put you, [O Muhammad], on an ordained way (Shari’a) concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know.17
To lay Muslims who are not specialised in Islamic studies, the term Islamic Shari’a means exclusively the rules that are contained in the Qur’an and Sunnah and the juristic interpretations of them. However, in the writings of Muslim scholars, the combined term ‘Islamic Shari’a’ refers to the dogmatic and practical rules18 which are contained in the main sources (Qur’an and Sunnah) as well as the secondary sources.19
Muslim Scholars are in agreement20 that Islamic Shari’a includes a wide scope of matters such as devotions ʿibadat, family affairs, civil transactions, regulations for criminal conduct and the eternal and external state’ s affairs.
It is widespread practice in the Islamic English language literature to describe the rules of Islam as ‘Islamic Law’ and to use the term ‘Islamic Shari’a’ interchangeably with it.21 It is noteworthy, however, that the term ‘law’ is used in the Islamic Arabic literature to refer to the rules which are made by man, and not to those of contained in the primary sources of Islamic Shari’a. Therefore, it is not common in Islamic legal scholarship to use the Arabic equivalent of Islamic law ‘al qanun Al islami’
interchangeably with Islamic Shari’a.22 The dictionary meaning of the term ‘law’
indicates that it is ‘enforceable body of rules that govern any society’23 which is
15 Rafiq Ajam, Mawsū’at Mu’jam Usūl al-Fiqh ‘inda al-muslimīn (Maktabat Lebanon, 1998) vol 1, 826.
16 Yūsuf al-Qaradawi, Mudkhal li Derāsat al-Sharia al-Islamiyya (Maktabat Wahba 2009) 7.
17 The Qur’an (Sahih International trans) 45:18.
18 Mustafa al-Zarqa, al-Madkhal al-Fiqhi al-A’am (Dār al-Qalam 1998) 48
19 The sources are explained below at p 27.
20 Al-Qaradawi, Mudkhal, above n 16, 9; Wahba al-Zuhili, Usūl al-Fiqh al-islami (Dār al-Fikr,1986) 438-439, Muhammed Khidr Hussain, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Nahdat Misr 1999) 3.
21 For example Muhammed Kamali, Principles of Islamic Jurisprudence (Pelanduk Publications, 1989) 1.
22 Furthermore, in some Islamic jurisdictions, such as Saudi Arabia, the ulema (scholars) have sensitivity towards the word ‘law’ due to its association with the Western-based legislations. W. M.
Ballantyne, Commercial Law in the Arab Middle East: the Gulf States, (Lloyd’s of London Press Ltd 1986) 49.
23 Oxford Dictionary of Law.
26 implemented by the compatible authority in the form of material criminal or civil responsibility. The rules the Qur’an describes as ‘Islamic Shari’a’ go further than that. They include material consequences for breaking the rules as well as religious consequences in the form of the potential punishment in the Hereafter. For instance, anyone who breaches the Qur’anic injunction which requires the honouring of contracts, ‘O ye who believe, fulfill your undertakings’,24 is required to compensate the other party. In addition, he or she is regarded as a sinner for not adhering to the Qur’an.
Accordingly, and pursuant to the classical meaning of Shari’a within the language of the Qur’an and as understood in the ancient and modern Islamic literature, it is better to describe the rules which are contained in or derived from the Qur’an or Sunnah as Islamic Shari’a rather than Islamic Law, and for the purpose of this study I will adopt the term Islamic Shari’a.
Another term related to Islamic Shari’a and widely used as synonym, is Islamic jurisprudence (al-fiqh al-islami). The dictionary meaning of the Arabic word Fiqh is knowledge and it is often used to refer to the knowledge of the rules and principles which are related to the Islamic religion.25 Technically, according to the widely agreed definition, Islamic Fiqh (jurisprudence) means ‘the knowledge of the practical rules of Islamic Shari’a which are derived from particular evidence in the sources [of Islamic Shari’a].26 In this sense, Fiqh is an intellectual activity and does not by itself constitute a binding set of rules. It is related to the practical rules of Shari’a, that is, the legal rules, and does not deal with devotional issues, while Islamic Shari’a is a set of rules by itself and includes all the rules of Islamic religion including devotions. The relationship between Islamic Shari’a and Islamic Fiqh is one between means and purpose:27 Islamic Fiqh is the knowledge by which the rules of Islamic Shari’a are deduced.
Another aspect of this strong relationship is that the classification of the secondary sources of Islamic Shari’a such as maslaha mursala (unrestricted public interest) and Qiyas (analogical reasoning) is a juristic work. Scholars of Islamic jurisprudence
24 The Qur’an (Marmaduke Pickthall trans) 5:01.
25 Ibn Manzur, Lisan al-Arab, above n 14, 3450.
26 Muhammed Abu Zahra, Usūl al-Fiqh (Dār al-Fikr al-Arabi, 2006) 6.
27 Yūsuf al-Qaradawi, Mudkhal, above n 16.
27 have articulated these sources and derived evidence for them from the Qur’an and Sunnah. Thus, despite the fact that Islamic Shari’a and Islamic Fiqh are two discrete concepts, they are robustly connected.