How Does Fiqh Differ From Shariah

You are required to use the Harvard style referencing in this assignment.

1. What is the function Of Maslaha Mursalah (public interest) in Islamic legal system? Analyse.
2. How does fiqh differ from shari ‘ah? Discuss.
3. How does AI Ikhwan al-Muslimun (Muslim Brotherhood) seek to apply Islamic law in its edification of pan-Islamism? Evaluate.
4. Why some Muslim scholars and Muslims consider apostasy a criminal offence in Islam? Explain.
5. In Sunni Islam there are four Madhahib (jurisprudential schools of thought) — Hanafite, Malikite, Shaft ‘i, and Hanbalite. Do you think these jurisprudential schools are sociologically harmonising or divisive? Examine.
6. During the colonial era, there occurred gradually the separation of government from the absolute sovereignty and power of the caliph as well as from the religious authority of the shari’ah in the Muslim world. Assess the long term consequences and the impact of this on Muslim everyday living.
7. Why Maqasid al-Shariah (aims and objectives of law) has an eminent status in Islamic legal theory? Justify.

INTRODUCTION

Fiqh is the science of the sacred law of Islam which is known as Shari'ah. Shariah represents the Islamic legal system that is derived from the religious texts of Islam, especially from the Quran and the Hadith (Hallaq, 1997). It is an Arabic term that means a body of religious and moral which is not made by humans but derived by religious texts. As human law deals with all kinds of issues and problems whether it is personal or public, Shariah also deals with issues of public domain as crime, economics and politics as well as private matters like marriage, sexual intercourse, relationships, diet, prayer, etiquette and fasting. Muslims have deep faith in Shariah, and that's why it has been seen that they have always been adherent to Shariah. Shariah is considered as the infallible law of God in its strictest sense. It never let any criminal go without punishing him or her. That is why, it is also viewed as fanatic law from the Western law perspective. One example of Shariah law used in Saudi Arabia is if one robs someone's house and is caught, his/her hand should be cut so that the person never repeats this again. No matter how small the crime is, Shariah has not given any space to forgiveness. It believes on punishment for each and every crime committed by the people. There is even no provision of forgiving the person if he accepts his misdeed and feels guilty. Apology and forgiveness don't exist in Shariah law. If it does in the Quran, the ones who are supposed to give punishment, are much more fanatic than the law not to consider such words (Ir, 2004). 

Shariah is made of from two sources which are the Quran and Hadiths following the rules and principles of Muhammad. The laws are made according to his life style and to the rules he followed in his life. There are issues which are not directly dealt with in Quran. For such issues, Shariah is derived from two sects of Islam, Sunni and Shia and also from the five schools of jurisprudence. In these derivations, there are hierarchical guidelines taken from the opinion of the Prophet's companions and analogy derived from the texts which are considered as primary sources. There are four such sets: Ijma, Qiyas, Istihsan, and Urf. The opinions of Prophet's companions are taken in Ijma, Qiyas is based on the derived analogy from primary texts, Istihsan is based on the ruling in the favor of Islam and Urf is derived as the customs of Islamic religion.

Fiqh, which is the science of Shariah, contains several ethical and legal rules which are taken from four sources: the Quran which is the word of Allah, the Sunnah which is the normative practices of Muhammad available as hadith, the opinions and consensus of the Prophet's friends and fiqh experts which is also known as ijma, and the analogy from a pre-defined method of reasoning known as qiyas. The science of fiqh is further divided into two sections: first is the study of its fundamentals known as usul al-fiqh and the second is study of its branches known as furu' al- fiqh or substantive law. Usal al-fiqh is called as legal theory and its goal is to establish the rules and principles to have an interpretation of the texts of law. It is at this point we get a clear distinction between Fiqh and Shariah. Where Shariah is the sacred law of Islam derived from the religious texts, Fiqh is only its science. Fiqh and its branches study what are the fundamentals of Shariah and how this law or the legal system can be interpreted and elaborated to the people.