al-Fiqh wa al-Sharia

al-Fiqh wa al-Sharia (Jurisprudence and the Divine Law) is an introductory study on Islamic law that examines the definition and scope of jurisprudence (fiqh) and divine law (sharia), their key characteristics, subject divisions, historical stages of development, and legislative sources. al-Fiqh wa al-Sharia

Purpose and Scope

The work introduces the reader to the foundational concepts of Islamic jurisprudence, presenting sharia as the final, complete divine legislation designed to remain suitable across all times and places, while framing fiqh as its practical core and foundation that has preserved its coherence across fourteen centuries while adapting to civilizational progress. al-Fiqh wa al-Sharia

The text defines the relationship between sharia and fiqh as one of general to specific (umum wa-khusus), dividing sharia rulings into three main categories: al-Fiqh wa al-Sharia

1. Essential beliefs (al-aqaid al-asasiyya), concerning God, His attributes, the prophets, scripture, and the afterlife, which are studied under theology (ilm al-aqida). al-Fiqh wa al-Sharia
2. Moral and spiritual refinement (tahdhib al-nufus), detailing virtues to adopt and vices to abandon, which fall under ethics (ilm al-akhlaq). al-Fiqh wa al-Sharia
3. Practical rulings governing human actions and relationships, encompassing acts of worship directed toward the Creator as well as interpersonal, financial, civil, and interstate transactions, which constitute the specialized domain of fiqh. al-Fiqh wa al-Sharia

Structure and Content

Subject Matter and Characteristics of Fiqh

The book divides the subject matters of fiqh into acts of worship (ibadat), whose primary objective is seeking closeness to God and whose specific rationales are generally strictly revealed (tawqifiyya), and transactions (muamalat), which regulate worldly interests and are rational in meaning (maqulat al-mana). al-Fiqh wa al-Sharia+1 It details several distinguishing characteristics of Islamic jurisprudence in contrast to positive law (al-qanun al-wadi):

• Nobility of purpose: It aims at realizing human welfare and preventing corruption for both the individual and society. al-Fiqh wa al-Sharia+1
• Divine origin: Its rulings are revealed by God, who possesses complete knowledge of human nature and needs, rather than devised by limited human intellect. al-Fiqh wa al-Sharia
• Compliance as religious obedience: Adherence is motivated by worship and divine accountability, establishing an internal conscience rather than mere apprehension of state enforcement. al-Fiqh wa al-Sharia
• Comprehensiveness: It organizes a person's relationship with God, with oneself, and with others, guarding the five universal necessities: religion, life, intellect, honor/lineage, and property. al-Fiqh wa al-Sharia
• Invariable foundations with flexible application: Its primary textual principles remain fixed while secondary rulings adapt to changing circumstances through legal reasoning (ijtihad). al-Fiqh wa al-Sharia+1
• Leniency and removal of hardship: Its obligations are limited in number and incorporate concessions for necessity, illness, and travel. al-Fiqh wa al-Sharia+1

Historical Stages

The treatise charts the historical evolution of Islamic jurisprudence across seven chronological periods:

1. The era of the Prophetic message, representing the completion and perfection of sharia. al-Fiqh wa al-Sharia
2. The era of the Rightly Guided Caliphs until the mid-first century AH, marking the preparatory phase for legal codification. al-Fiqh wa al-Sharia
3. The mid-first to early second century AH, when fiqh emerged as a standalone discipline and early regional schools formed. al-Fiqh wa al-Sharia
4. The early second to mid-fourth century AH, the zenith of legal development and systematic codification. al-Fiqh wa al-Sharia
5. The mid-fifth century AH until the fall of Baghdad to the Mongols in the mid-seventh century AH, marking the onset of imitation (taqlid). al-Fiqh wa al-Sharia
6. The mid-seventh century AH to the early modern period, characterized by weakness in compilatory style. al-Fiqh wa al-Sharia
7. The mid-thirteenth century AH to the contemporary era, marked by the expansion of comparative legal studies and the publication of classical reference works. al-Fiqh wa al-Sharia

Legislative Sources

The book reviews the primary sources of Islamic law, beginning with the Quran as the overarching constitution, followed by the Sunnah as an explanatory and supplementary authority. al-Fiqh wa al-Sharia+1 It then examines consensus (ijma) and analogical deduction (qiyas), noting that qiyas provides the widest scope for addressing novel legal occurrences. al-Fiqh wa al-Sharia It also treats secondary sources, notably public interest (istislah or al-masalih al-mursala) and custom (urf). al-Fiqh wa al-Sharia+1

Sources and References

The treatise draws upon contemporary introductions to Islamic jurisprudence and legal history, citing works including al-Madkhal al-fiqhi al-amm by Mustafa al-Zarqa, Tarikh al-fiqh al-islami by Umar al-Ashqar, and studies by Abd al-Karim Zaydan, Muhammad Abu Zahra, Muhammad al-Zuhayli, and others. al-Fiqh wa al-Sharia