Distinction between Shari’ah and Fiqh

Distinction between Shari’ah and Fiqh

The underlying idea in Ziba’s thesis is the main distinction in Islamic tradition between Shari‘ah and fiqh.

The distinction is important as it can enable organizations to recognize that the lack of gendered citizenship rights and the discriminatory practices that some Muslim women confront are not necessarily derived from the core message of Islam’s sacred texts, but rather to the interpretation given to those texts by traditional political and religious institutions.

Indeed, Shari’ah is “the totality of God’s will as revealed to the Prophet Muhammad”—thus essentially an enduring set of guideline. Fiqh, however, is the process of human endeavour to “discern and extract legal rulings from the sacred sources of Islam,” which the author argues has often been conflated with Shari’ah even if it is culturally derived. This distinction also elucidates a tendency in Muslim discourse for fiqh to be equated with Shari’ah, often with the ideological intent of passing fiqh as divine and infallible,
when instead it is a product of patriarchal, man-made interpretations situated at different historical moments.

How and why the distinction between Shariah and Fiqh is important to activists and lawyers?

The recognition and understanding of the distinction between Shari‘ah and fiqh is crucial to
strengthening the arguments of committed activists who are trying to respond to the conservative view that fiqh is an immutable and absolute reflection of religious principles as articulated in the core Islamic texts. This knowledge can provide activists with the informational tools to produce counter-narratives to patriarchal and discriminatory discourses on women’s roles and rights, through contextualizing those discourses within the historical moments during which religious and political institutions defined Islamic
jurisprudence.

Through re-discovering Islamic jurisprudential history of interpretation and development of Islamic sources, activists can better articulate how inequalities embedded in fiqh are not manifestations of divine will but rather human constructions, informed by the social and psychological realities of early Islamic authors. In this new light, activists could demystify both the power games conducted in a religious language, and the instrumental use of religion to justify autocratic rules and patriarchal culture.

This essay can be further interpreted as a call to activists to educate one another on the discursive conflation of Shari’ah and fiqh, and to deconstruct this false link in an effort to argue for policy changes.

What makes an interpretation of law legitimate and authoritative?

Activists can further explore questions of legitimacy and authority in Islamic jurisprudence and thus can challenge the notion that the interpretations of state and local religious authorities are absolute truths, and instead position them as historical constructions. This argument could even be made without evoking the subject of women’s rights and so avoiding unnecessary backlash. The answers to fundamental questions, such as “When is power exercised legitimately?, Who can exercise it? And when is resistance against power legitimate and necessary?”, may also generate greater civic engagement.

FI ACADEMIC ANALYSIS

Tools for Lawyers, Policy-Makers and Activists

Academic Analysis of: Mir-Hosseini, Ziba. “Muslim Women’s Quest for Equality: Between Islamic Law and Feminism.” Critical Inquiry vol. 32, no. 4 (Summer 2006): 629-645

By: Melissa Sions, Francesca Spidalieri, Natasha Latiff and Helena Zeweri
The views expressed are not those of the authors above. This is an academic analysis of this particular
article.

Article 26: Prohibitive Questioning of Family Witnesses

Earlier this month, Article 26 of Afghanistan’s draft criminal procedure code, dealing with the testimony of relatives as witnesses to a crime, was approved by Parliament and sent to the President for his signature.

The provision titled “Prohibition of Questioning an Individual as a Witness” is currently reflected in a bill written in Dari, the official Persian used in Afghanistan. Translated into English, Article 26 of the draft stipulates that certain people cannot be questioned as witnesses and includes relatives of the accused. Apart from relatives, others covered by the prohibition are children, doctors and defence lawyers. Hence a plain reading of this provision implies that family members, among other defined groups, will be banned by law from giving testimony against accused persons.

Contained in Chapter 5 of the code (‘Testimony’), Article 25 (the preceding article) explains that persons who have information about crimes can, and should be summoned as witnesses. The succeeding Article 27 allows witnesses not to answer questions that could lead to prosecution for themselves or their relatives. Yet, a stand-alone construction of Article 26 appears to impose a blanket ban on relatives from testifying. It goes on to say that prosecutors, officials and the court are obliged to inform the listed categories of their right to silence. The chapter is marred in ambiguity.

This draft bill has now been forwarded by the President to the Ministry of Justice for necessary amendment(s). The manifest prohibition under Article 26 raises a few legal issues:

1. The scope and ambit of the term ‘relatives’ needs to be ascertained: (i) Who does it cover? How does it apply to persons related to both the victim and the accused?

2. When a relative (or any other prohibited class of individual) actually does or attempts to give testimony against a related person: (i) Will this be merely a procedural infirmity, cured by striking off such testimony; or (ii) Will such a person be judicially restrained from providing evidence; or (iii) Will such evidence gathered during investigations be rendered inadmissible in Court? 3. When the testimony is substantially material to the elements of the crime, can the Court still summon that witness or admit its evidence? And if not, how does this exception sit alongside Constitutional safeguards and guarantees within Shariah to facilitate justice?

O you who have believed, be persistently standing firm in justice, witnesses for Allah , even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, Acquainted.

In light of the above, Article 26 in its present form clearly violates Article 3 of the Constitution on the primacy of Shariah law and the foundation of Shariah (maqasid-al- Shariah) on discovery and justice. Article 26 could also clash with certain provisions under Chapter Two (“Fundamental Rights and Duties of Citizens”) of the Constitution. For example, Article Twenty Two reads: “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Constitutional Article Twenty Four speaks of liberty as a natural right. The selective prohibition of certain categories from exercising a ‘right’ might be interpreted by a competent court as discriminatory, unequal and bad in law.

Since certain persons cannot be questioned as witnesses, these individuals will effectively be stripped off the right to testify and put forth evidence in a criminal case. Especially in circumstances where the victim herself is restricted from presenting the facts of her complaint, or essential eyewitnesses are silenced on account of familial ties, Article 26 becomes a serious violation of fundamental freedoms. The prohibition is an infringement of basic safeguards accorded to the citizens of a country within the protections of law and religion.

Read more here: Article 26_Legal Opinion

Femin Ijtihad

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