Between Sharia'h (Islamic Law) & Fiqh (Islamic Jurisprudence)

 

 

In the aftermath of World War II, several currents, from the extreme right to the

extreme left, surfaced in Egypt, for a variety of deep-rooted and interrelated reasons.

One of these currents raised the slogan of religion and targeted the revival of Islamic

Caliphate and the application of Sharia'h.

 

But the revival of Islamic Caliphate clashes with the political regimes and government

status – not just in Egypt, but all through the Muslim world. So, that current concealed

the call for reviving the Caliphate and pushed through with the call for applying the

Sharia'h, hoping such application is their way of reviving the Islamic Caliphate.

Maybe as a result of that current – and other different reasons – the expression

"principles of Islamic Sharia'h" made its way into the contemporary Egyptian

legislations. The second paragraph of the first article of the civil law – effective from

October 15, 1949 – states that "In the case of absence of a legislative text to be

applied, a judge is to rule by custom, if not, then by the principles of Islamic Sharia'h,

if not, then under the principles of natural law and the rules of justice." The second

article of the Egyptian Constitution – adopted in 1971 – states that "The principles of

Islamic Sharia'h are a major source of legislation". In the Constitutional amendment

of May 22, 1980, that article was changed to be "The principles of Islamic Sharia'h

are the major source of legislation", adding the definition article to make it "the major

source", instead of "a major source".

 

What the legislator did – in subjection to the above mentioned current, whether

agreeing with it or trying to control it – made the call for legalizing the Islamic

Sharia'h a hot issue, untouched by pros or cons without having its burning effect on

them.

 

The changes Egypt witnessed during the past half a century helped increase that

burning effect and spread the blinding smoke coming out of it. The political system

changed completely in persons, institutions and the philosophy of ruling. The

traditional social system, based on the hierarchy – where respect for the superior and

pity on the inferior spread – fell apart. School learning increased, but without being

accompanied by a general cultural atmosphere or wiping out of illiteracy. Fortune was

redistributed randomly, without always emphasizing the respect of work values or

resorting to honest means or following economic regulations or respecting state laws

or caring for the interest of the citizens. The infrastructure of society was altered

without control or guidance. Measures of evaluation were destabilized, losing

objectivity and clear definitions. The balances of effort were turned upside down,

giving more value to manual labor than mental work or any other work. The very

standards of work lost their meaning, with the higher value shifting from work itself

to public relations or easy gains or deceitful appearances. The overwhelming majority

no more demands what they deserve, but rather the utmost they can get, changing the

general principle from "each (gains) according to their work" or "each (gains)

according to their needs" to "each (gains) as much as they can take", even without

effort or work.

 

Adding to this the outer factors of war defeats, change of treaties between east and

west, increase of oil-producing Arab countries' fortunes, labor forces going abroad for

work and the effects of money transfer to and from the country and security and

economic international unrest… All these factors – apparent or concealed – led to the

voices calling for the application of Islamic Sharia'h judging such application would

immediately lead to instant reform of the society and make it purified and idealistic.

Through repetition and persistence, the call gained supporters, especially upon seeing

the official approach of the state – considering "The principles of Islamic Sharia'h are

the major source of legislation" – which convinced them with the seriousness and

soundness of the call.

 

In any society, all through history, when the powers of work shrink, the power of

slogans become huge and when the ability of labor retreats, that of speeches takes

prominence. When the capabilities of scientific research are weakened, the effect of

empty talk gets louder. This being the case of our modern society, the call for

legalizing Sharia'h sufficed with just repeating the call, considering it a first and last

demand for any reform, without caring to conduct serious, accurate and scientific

studies on what is meant by it and whether its mere application leads automatically to

all reforms or there is some more important and better means; namely, education,

good example and forming conscience of the people.

The civil and constitutional legislator – both or one of them – never put a definition

for the expression "principles of Islamic Sharia'h". The committees formed to legalize

what they thought to be Islamic Sharia'h, went straight to business without never

trying to determine what is meant by that expression, their method in adopting that

legalization and the relevance to the current Egyptian law or to make a comparison

between both.

 

The word "Sharia'h" does not mean – not in the Noble Qura'n or dictionaries of

Arabic – legal rulings, but it means the way, method, road and the likes of these broad

meanings.

 

In the Noble Qura'n, Sura 45-18, says: "And now have We set thee (O Muhammad)

on a clear road of (O ur) commandment; so follow it.", meaning We set you, Prophet,

on a road or a way. And in Sura 5-48, it says: "For each We have appointed a divine

law and a traced-out way." That means there is one religion for all messengers and

prophets and one road or way for that religion. And in Sura 42-13, it says: "He hath

ordained for you that religion which He commended unto Noah, and that which We

inspire in thee (Muhammad), and that which We commended unto Abraham and

Moses and Jesus." That is to say a road from that religion to follow, and so on.

That Qura'nic meaning about the word Sharia'h – as a noun and a verb – is the same

linguistic meaning in the language dictionaries. The verb "shara'" means – in language

– watering place and the noun "Shira'h or Sharia'h" means "water source"; that is

water opening; that is way or road "Dictionary Lisan El-Arab – Tongue of the Arabs).

The word Sharia'h underwent amendments and changes several times in the Islamic

thinking. It was first used under its original meaning (way – road and so on). Then the

meaning was broadened to include legal regulations (legislations) mentioned in the

 

Noble Qura'n. Then it was extended to include similar regulations and rules

mentioned in prophetic sayings. The meaning then changed to include explanations,

interpretations, Fatwas and judgments issued to explain these rulings or to measure

against them or deduce wherefrom to apply; that is to say jurisprudence. Currently,

the word Sharia'h means exactly – in the common usage – Fiqh (Islamic

jurisprudence) or the historical system of Islam.

 

The call to legalize Sharia'h actually means legalizing Fiqh or reviving the historical

system of Islam, without awareness of the confusion between Sharia'h and

jurisprudence and without realizing that the rules of Fiqh and Islamic systems were

formed across history and during certain events. These conditions change according to

emerging and new situations, and without realizing Fiqh and systems are man-made

resulting from human applications and thinking, thus enjoying no sanctity, thus they

should not be an obstacle before new thinking or blocking creativity and

renovation. The Egyptian legislator also fell victim for that confusion between Sharia'h

and Fiqh, leading to the worst consequences on the legal thinking on one hand, and on

the political thinking and work, on the other, not only in Egypt, but all through the

Islamic world. The preparatory works for the civil law, in comment on the text of the

second paragraph of the first article, referred to before, stated: "First of all, an

Egyptian judge is demanded, in the absence of a clear law article, to seek a solution

for the dispute before him guided by the principles included in the general law for all

Egyptians with all their different religions… It is clear through researches … that

many modern theories were known to Muslim jurists". These preparatory works

stated: "Highlighting the principles of Islamic Sharia'h is a renovation aiming at

meeting the rights of that Sharia'h not only in its capacity as an historic source for a

part of the project's rules (later known as the civil law), but as a unique model of fine

technical linguistic formations. The Islamic Sharia'h has enjoyed a distinguished place

in the jurisprudence of comparative law and headed the finest modern techniques on

the theory of arbitrary use of right and other human theories. Therefore, it is entitled

to be a source of inspiration for Egyptian judiciary, especially that most of the

project's rulings (later known civil law) can be produced under the Sharia'h rulings on

its various schools without burdens". The preparatory works also stated: "The article

speaks about the principles of (Islamic) Sharia'h, that is its general concepts, which

are not a subject of contention among jurists." (Preparatory Works for the Civil Law –

Part 1 – Pages 184, 189, 191).

 

It is clear, from what is above mentioned, that the legislator did not put a definition

for the word "principles" or "the Islamic Sharia'h", even though that was a must,

especially the expression and word were used in an important law, like the civil law

and were later used in the constitution.

 

But it is clear form the preparatory works of the civil law that the legislator, by using

the expression "principles of Islamic Sharia'h", meant the general rulings jointly

agreed upon by the Islamic schools of Fiqh. This is obvious when it was stated that

"many modern theories were known to Muslim jurists", and "The article speaks about

the principles of (Islamic) Sharia'h, that is its general concepts, which are not a

subject of contention among jurists." The context of the legislator's words in the

preparatory works – in addition to his phrases referred to above about the Fiqh

theories known to jurists and the different schools of Fiqh – all that determines the

fact that the legislator fell victim to the confusion between Sharia'h and Fiqh. In fact,

he meant the general rulings of Islamic Fiqh or the joint principles among the schools

of Fiqh when he used the expression "principles of Islamic Sharia'h".

 

The Constitution of 1971 has no explanatory memorandum or preparatory works that

could be consulted to clarify the legislator's goal or intention behind the usage of the

expression "principles of Islamic Sharia'h". But it is clear the legislator of 1971

Constitution had taken the expression from the civil law, with all the confusion of

understanding and chaos of usage.

 

The Constitutional amendment of May 22, 1980, was preceded by two reports of the

special committee formed to introduce that amendment. They said "It is known that

the major sources of Islamic Sharia'h are the Book (Noble Qura'n", Sunnah (prophetic

tradition), unanimous rulings and Fiqh. In addition, there are several sources opinions

differ on them from one school (of Fiqh) to another, such as open-ended interests,

custom…etc". "It is also known that Sharia'h rulings are divided into two sections:

The first is clear-cut rulings with no room for human interpretation (Ijtihad). The

second is Ijtihadi rulings… It is a given fact for the second section that these rulings

change according to place and time, a matter that led to the existence of various

schools of Fiqh and even different opinions within the same school. That gave Islamic

Fiqh vitality and flexibility, making it safe to rule Islamic Sharia'h is applicable at all

times and places." "Excluding Islamic Sharia'h to the rulings of previous juris ts is a

matter rejected by the texts and spirit of the Sharia'h." "It is a given fact for Islamic

Sharia'h – being a comprehensive organization for religious and worldly affairs – that

it includes two essential principles in dealing with non-Muslims: First is no

compulsion in (getting people to adopt) religion, and second is they share the same

rights and duties as Muslims."

 

It is clear from what is above mentioned that the legislator of the latest Constitutional

amendment severely confused religion, Sharia'h and Fiqh… This is a really

unfortunate matter.

 

First: He mentioned the Noble Qura'n, Sunnah, unanimous rulings and Fiqh to be the

major sources of Islamic Sharia'h, while these sources are Noble Qura'n, Sunnah,

unanimous rulings and Al-Qiyas (Comparison of incidents), which are all sources of

Fiqh or for producing rulings and not sources of Sharia'h. This is confusion between

Fiqh and Sharia'h.

 

Second: He divided Islamic rulings into clear-cut proved rulings and Ijtihadi ones that

change with time and place, whereas clear-cut rulings are those related to worship and

Ijtihadi ones what jurists thought.

 

Third: In referring to how the existence of various schools of Fiqh gave Sharia'h

vitality and flexibility, making it applicable at all times and places, he – as usual –

confuses Sharia'h with Fiqh.

Fourth: Again in deciding that limiting Islamic Sharia'h to rulings of previous jurists

is a matter rejected by the texts of the Sharia'h, he is confusing what Sharia'h is with

what is Fiqh.

Fifth: In referring to two principles as being Sharia'h principles; first is no compulsion

in religion which is at the core of religion itself and the second is non-Muslims share

the same rights and duties as Muslims is a Fiqh principle.

 

There is a big difference between a Sharia'h principle or ruling and a Fiqh principle or

ruling. The Sharia'h principle is taken directly from the Noble Qura'n or Sunnah; such

as: "No laden soul can bear another's loud", Sura 17-15, and "And every man's augury

have We fastened to his own neck", Sura 17-13, and "Divorce must be pronounced

twice and then (a woman) must be retained in honor or released in kindness", Sura 2-

229. Fiqh principle or ruling, on the other hand, is put forward by jurists, even though

inspired by the spirit of religion and Sharia'h.

 

The Sharia'h principle or ruling is established by the Great Legislator in the Noble

Qur’an or what the Prophet (PBUH) spoke of in well-proved Sunnah. Whereas Fiqh

principle or ruling is any Ijtihad or a rationale by a Muslim or a jurist.

That means a Fiqh principle or ruling is not fortified (against mistakes) or sacred or

constant, because it is the point of view of a human that he said or did in certain

circumstances that change accordingly. It is known that Imam Shafie' made changes

to his Fiqh when he moved from Iraq to Egypt; that is to say he changed Fiqh by

merely changing place, despite time being the same and circumstances generally

similar.

 

All that means the call for legalizing Fiqh (mistakenly called Sharia'h) could be

political, party, national or sectarian calls, but definitely they are not religious. Any

other saying leads to odd and pervert results. An opponent of that call might be

considered kafir (atheist), even though he is merely rejecting or refuting a human

judgment, no matter how highly esteemed is that human. How could the nonlegalization

of Fiqh be deemed Kufr (atheism) or the government that does not apply

it be deemed kafir? What is so atheist about being not subjected to (following) a

human opinion? How could be following an opinion by Shafie' and not by Malik be

deemed Kufr? Or even following a Shiite school, not a Sunni one? What is atheist in

following the rulings of an Egyptian, not French or Italian jurist, as long as it is for the

best interest of society? A Fiqh ruling says: Wherever interest lies, it is the Shara'

(Ruling) of Allah). What is so atheist in applying the legacy and rulings of Egyptian

courts that continued for over a century to be a model of comprehensiveness and

accuracy, by the whole world's testimony?

 

If non-legalization of Fiqh (mistakenly called Sharia'h) is deemed Kufr, its

legalization could also be deemed Kufr. A legislator should adopt the opinions of

some jurists and neglect those by others. Therefore, followers of the neglected Fiqh

opinions are entitled to deem the legislator Kafir, as he opposed Sharia'h as he himself

(legislator) claimed. The clearest example here what happened during the amendment

of personal affairs' law through Law Decree number 44 for 1971. The draft was put

by then deputy of Waqf Ministry (Islamic Endowments), deputy head of Al-Azhar

and the Mufti of Egypt. They said the amendment conformed with Sharia'h (they

meant Fiqh), whereas opponents of the law – many actually – say it opposes Sharia'h

(they mean Fiqh), with some of them being as radical as deeming those who put or

apply it as Kafir.

 

So, legalizing Sharia'h (meaning Fiqh) may lead to a deep whirlwind of Kufr

accusations, sending the whole society to the edge of a bottomless cliffhanger, bound

to end up with violence and terrorism, under the belief such works are carried out to

achieve Allah's orders. In fact, this is confusion between Sharia'h and Fiqh and

ignorance of the reality of Sharia'h and Fiqh rulings.

 

It is clear, from the above mentioned, that the Egyptian legislator – in using the

expression "principles of Islamic Sharia'h" – always meant rulings of Fiqh or the joint

rulings among the different schools of Fiqh.

 

The civil law authorizes the judge – in case of absence of a legal text matching the

dispute before him – to resort to custom, then to rulings of Islamic Fiqh. The

legislator then authorizes the judge – in case of Fiqh rulings missing a judgment on

the dispute – to resort to the principles of natural law and foundations of justice; that

is to say human conscience. Had the legislator been confident the rulings of Fiqh

contain solutions for any problem or trouble, even in the future, he would have

stopped there and not refer to natural law or justice (conscience).. The Divine source

inherent in individuals and societies cared for by all heavenly religions.

As regards the constitution, it is obvious the legislator – by using the expression

"principles of Islamic Sharia'h are the major source of legislation" – meant the general

rulings of Islamic Fiqh, as demonstrated in the two paragraphs explaining the reasons

for amendment. These rulings are like the rulings "There should be neither harm nor

reciprocating harm", "Hardship brings about easiness" and "Necessities know no

law", all are applied in the Egyptian Code, with its various branches. "There should be

neither harm nor reciprocating harm" is applied in article 163 of civil law, which

states "Every mistake causing harm to others invokes compensation upon who caused

it". "Hardship brings about easiness" is applied in the theory of emergencies, stated

upon in article 147 civil law, "In cases of general exceptional incidents that could not

be anticipated and that led making the meeting of a contract commitment – even

though not impossible – very hard on the debtors part threatening him with severe

losses, the judge is authorized to reduce that debt (commitment) to a reasonable

limit". "Necessities know no law" is applied in the case of necessity stated in article

61 penal law, "No penalty for someone, who committed a crime under the

circumstances of necessity of protecting himself or others from an imminent grave

danger threatening the self or others, and he had no power or will in stopping it by any

other way."

 

Henceforth, following the principles of Fiqh or the general rulings of schools of Fiqh

in the Egyptian legal system – and in other Arab and Islamic systems – leads to

proving them all in one ruling or another, in a clear manner or applicable one

necessitated by tailoring rulings, diversity of texts and multiplicity of targets.

So, a constitutional text is considered a statement of an already existing affair in the

legal system and it is not considered – upon examination and verification – a call for

any change or a base for any demand for a new legalization.

 

 

http://www.dirittopubblicomc.org/materiali/ied/Islamic_Jurisprudence.pdf