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
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