Sharia and jurisprudence not the same

By Alia Hogben

KINGSTON – The other night, at our three-generation dinner table, the topic of “sharia law” came up and caused some confusion and tension.

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The world is falling apart around us for a number of reasons and one of these reasons is misunderstandings between Muslims and non-Muslims. One example is the constant misuse of the term “sharia.”

There are many scholars who have written on the clear difference between sharia and jurisprudence, or fiqh in Arabic. I know this confusion is deliberate on the part of both hostile non-Muslims and those Muslims who want to segregate us from others. These Muslims include the extreme traditionalists, politicals, along with groups such as Daesh.

The dangers of misusing “sharia” has led to the recent protest marches in the States, with people terrifying others that “Sharia Law” is coming to the States.

What does sharia mean?

The exact definition of sharia is that it is a well-trodden path leading to the source of water, that is, a path towards God. A scholar, Asifa Quraishi Landes, describes sharia as “a body of Quran based guidance that points Muslims toward living an Islamic life … it is divine and philosophical.”

Another scholar, M.S. Mahmassani, defines sharia as “a bundle of moral ethical principles and a value system which provide tools to guide humanity.” Khaled Abou El Fadl writes that “God’s law as an abstraction is called the sharia, while the concrete understanding and implementation of this Will is the fiqh.”

These are two distinct terms — Sharia and fiqh, or jurisprudence; one is the ethical principles regarding moral guidance, while fiqh is the human understanding of these Quranic principles. The development of a legal framework was the work of male scholars from all parts of the then Muslim world.

Because fiqh/ jurisprudence was developed over a number of centuries (8th- 9th CE), it is not a uniform codified set of laws but is a mixture of laws. This legal framework includes family laws, as well as criminal and other laws.

Of the 6,000 or so verses in the Quran, about 80 verses deal with legal matters, and it is reasonable to look into how these have created an entire legal system. As a scholar notes, the Quran is not a legal or constitutional document, as less than three per cent of the text deals with legal matters.

The other source of information for the legal system is the sayings and practices of the Prophet Mohammad that were recorded years after his death. Most are accepted but some of these Hadeeth and Sunna are controversial.

What are the ethical principles of sharia? These include justice, morality, prevention of hardship of people and prevention of oppression. It also includes the five pillars of Muslim practice — belief in one God; prayers; fasting; charity and the pilgrimage.

Ask any Muslim if they believe in sharia, not fiqh, and I am sure all of us will reply in the affirmative. That is because sharia is rightly understood as God’s divine teachings.

Sadly, I think blurring the difference is done for a number of purposes. One is to insist that the conservative interpretations are correct; another is to frighten people by insisting that any change will be anti-Islamic; and, thirdly, to ensure the patriarchal system is maintained and women are persuaded that patriarchy is good for them.

Muslims living in Muslim-majority countries are still yearning for democratic rights and wonder if the answers lie within Islam. Because of colonialism and Western hypocrisy, sadly, the alternative of secular laws is viewed as “western” and thus not acceptable to traditionalists.

However, there are some scholars, such as Mahmassani and An Naim, who believe that secularism is essential for the practice of Islam, and should be the alternative to the traditionalists demands for “sharia laws.”

I think that unless fiqh, man-made interpretations and sharia, which are divine principles, are clearly distinguished and not conflated, Muslims will continue to face obstacles to create changes or reform laws, such as family laws. No Muslim wants to ignore sharia but would be open to reconsidering the rules of jurisprudence.

Unless we openly discuss fiqh/jurisprudence we cannot advance any new thinking to change matters such as the position of women or the unfairness of some aspects of Muslim family laws.

There are international women’s groups who are struggling to change these laws but the hostility directed at them from our conservative, traditional brethren is crippling.

It is in jurisprudence that the punishments for apostasy and adultery are so awful; these are not in the Quran.

So may I please ask everyone to advocate that the correct term of fiqh, or jurisprudence, be used and not “sharia”?

So believe in sharia as divine guidance and fiqh as man-made and capable of change and reform, and let us move forward as thinking Muslims!