the liberating difference between sharia and fiqh

Okay, so, too many people–Muslim and non-Muslim–use the words “sharia” like everyone knows what it is, like it’s some piece of literature confined to some bound book that anyone (or at least the “scholars”) can consult about different issues. A Muslim dude once even asked me, in a conversation where we disagreed on some topic, “Have you even read the Sharia???” I told him yes. He believed me ❤

The firs time I heard the word/concept of fiqh was around 2010, I think, and I it took me the next several years to actually understand what fiqh and sharia are and what the relationship between the two is. I now make it a point that my students understand this difference because of how crucial it is to, really, understanding Islam more generally and in, what I think is, more effectively combating the irrational fear of the myth of a “creeping sharia.”

Of course, it’s not just non-Muslims or ignorant Americans who think there’s such a thing as a sharia that can be imposed on their innocent, human-rights-loving selves. Too many Muslims are equally ignorant about what the sharia is. The difference, though, is that for the Muslims, the sharia includes basics like praying, giving charity, being a good neighbor, and so on, whereas most non-Muslims and especially Islamophobes imagine the sharia to be simply some texts that are all about violent ways of killing people (like gay people, ex-Muslims, women who commit adultery, and so on).

The truth is that too often, when both Muslims and non-Muslims use the word “sharia,” they really mean fiqh. (In fact, even when they use “Islam,” they really mean fiqh. There are other terms, too, that are used commonly synonymously with “Islam” as though they have clear meanings, as though all Muslims and non-Muslims know what these terms mean. More on this another time, if I can remember.)

“Sharia” literally means “pathway” to water, where can safely say that water symbolizes life, but in this case, God.  I like to think of the Shari’a as the ideal way to reaching God – God being the ultimate source of all life. Its origins are believed to be in the Qur’an and the Sunnah (prophetic model, often derived from reports attributed to the Prophet Muhammad but not always). To think of it as “Islamic law,” as it’s often translated, as therefore an unfair representation of what it is.

Since there are (often major) differences in interpretations of the Qur’an and the sunnah, it’s not always easy to determine what the sharia position on a certain issue is. So Muslim scholars came up with something called fiqh. Fiqh, literally meaning “understanding,” refers to the human attempt to understand the sharia. Because it’s human, it’s constantly evolving and is open to re-negotiations so as to accommodate the changes that human understandings undergo.

You should know that it is especially the Hanafi position that the sharia itself is not reachable, but we can try to reach it through fiqh. Other schools, while agreeing that the sharia isn’t so simple, do believe that it’s possible at least in theory to reach the sharia and understand it properly, but that we may not always be able to figure it out.

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Source (Hannah Whiteman)

There’s such a thing as “maqaasid al-sharia,” or the objectives of sharia. These are believed to be–according to the all-male ‘ulama industry of our past–the preservation of life, mind, progeny, wealth, and honor. Some of these are very patriarchal objectives, and we can discuss them another time, but do know that you have legitimate right to disagree with those objectives and believe that there are alternative ones as well. They, like so much else in religion, are actually pretty subjective and are socially/culturally situated, like the idea of preserving honor and progeny. More another time, though. I’m pointing out that there’s such a thing as maqaasid because arriving at these objectives requires figuring out the WHY of responsibilities and rights and roles as Muslims. Once you ask why something is the case, you are doing interpretation. And that’s where all these disagreements come up.

There are currently four major Sunni schools. There were many, many more historically. Other Muslim sects have their legal schools as well. These are all fiqhs. And the differences, even within the same sect, aren’t always minor, like people say they are. Even the foods that are allowed and not allowed aren’t agreed upon, so there’s that. And then there’s marriage and divorce and child custody rules that are so different that in one school, your child is “legitimate” and in another, not so much, all because the schools don’t agree on what makes a valid or invalid marriage. But we’re told that all of these schools are correct (the Sunni ones, that is – but of course). This is fiqh. It’s like saying all fiqh is correct, despite the major differences and contradictions and inconsistencies. (This isn’t necessarily or inherently a bad thing in my opinion. But it only becomes bad when contemporary Muslims are limited to the interpretations of the fiqh of the past – but only when it comes to gender and sexuality matters where re-interpretations are gravely needed, as I’ll show in another post.)

Now, you might go, “oh, ok, so what’s liberating about all this?” Actually, everything. It’s like you weren’t paying any attention at all.

sophiasattar

Source (Sophia Sattar)

Because this means that there’s some powerful flexibility in what is “Islamic” and “un-Islamic” because fiqh is constantly changing, at least with each generation. (I’ve a blog post coming up on examples of things that were once Islamic and not anymore, or once un-Islamic but Islamic today.) This flexibility is especially important and helpful for Islamic feminism: the myth that there can’t be “feminist” or gender-egalitarian interpretations of Islam or the Qur’an was always a myth, but the difference between sharia and fiqh helps explain why. And that is because we can think of feminist interpretations contributing to evolving fiqh. The more we interrogate our ideas of “justice” and “injustice,” for example, the more we are able to do so from feminist perspectives or more holistic perspectives. In other words, since fiqh is our *understanding* of the divine commands, why can’t that understanding and our methods to understand include feminist methods, feminist understandings, feminist perspectives, feminist concerns?

My friend The Fatal Feminist has an excellent series on this topic that I highly recommend everyone to read: Reclaiming Sharia: The Process; Reclaiming Sharia: The Opponents; Reclaiming Sharia: The Significance (this is where you can read more about the feminist possibilities of a proper understanding of the sharia).

So all this talk about “implementing shari’ah” is all about arrogance – and ignorance. And power, but that goes without saying. It’s basically fiqh that people are talking about implementing, and that’s scary and dangerous because that would require attributing divine values to the opinions of men of a certain, very unclear past.

To summarize, the sharia is abstract; it’s an ideal that Muslims are to strive towards. It’s not (always) reachable, but efforts must be made. The effort to strive towards the sharia, to understand what the sharia is, is fiqh. The sharia is immutable in the sense that the quest for justice, goodness, piety, etc. isn’t changeable – we’re always to strive towards justice. But fiqh is to change with time because our human concepts of justice, goodness, etc. change with time and context.

This is why claims like “fiqh facts” or “but this is what the fiqh says! I’m not making this up” are unfair to Muslims. There’s really no such thing as a “fiqh fact” because whose fiqh are we talking about and what time period? And, most importantly, so what if it’s a “fiqh fact”? That doesn’t make it necessarily applicable or factual or relevant to all people at all times. (Another interesting fact: there’s no consensus/ijma’ on what is consensus/ijma’!)

Some important reads on this topic:

Ziba Mir-Hosseini’s Islamic Family Law and Social Practice: Anthropological Reflections on the Terms of the Debate (esp. p. 23 onwards where she explains this conflation of fiqh with sharia and the ramifications of this error)

Jasser Auda’s Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach (alternatively, here’s a summary version of this book: Maqasid Al-Shariah: A Beginner’s Guide)

Khaled Abou El-Fadl Speaking in God’s Name: Islamic Law, Authority and Women(this book is life-changing – read it)

Peace.

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About Orbala

I want it to rain on my wedding day, pliss.
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