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From the orthodox Sunni Islamic perspective, contrary to the lay understanding, "sharia" is not so much a "legal ruling", but it is a universal and omnipresent law created by God, exists upon the confinement of time and space, and condensed into the Qur'an as a divine revelation.[note 1] Fiqh is a scholarly attempt and process to "interpret" this omnipresent law from the Qur'an as well as the practices of Muhammad, and apply it to the transient world.
Fiqh is predominantly divided into two categories: Usul al-Fiqh and Furu al-Fiqh.
- Usul al-Fiqh (principle of Islamic jurisprudence) deals with the rules of how this interpretation should be conducted. The process can be broadly divided into four steps:
- interpret based on the Qur'an
- if there's no instruction in the Qur'an, interpret based on hadith (records of prophetic traditions)
- if both Qur'an and hadith do not provide instructions, rely on scholarly consensus (ijma)
- if this cannot even be achieved, try making an analogy (qiyas) from the existing rulings.[note 2]
- Furu al-Fiqh deals with an actual product of the process of interpretation. Each one of the rulings itself is called "hukm". When we normally refer to sharia, like criminal codes that prescribe stoning or dress code etc., we are essentially talking about hukm.[note 3] Hukm can be divided into five categories depending on permissibility: mandatory (fard),[note 4] recommended (mustahabb),[note 5] neutral (mubah),[note 6] reprehensible (makruh)[note 7] and forbidden (haram).[note 8]
So fiqh is essentially an umbrella term that covers usul al-fiqh, furu al-fiqh and hukm. A person who is scholarly-trained in fiqh is called faqih, and they comprise the majority of Muslim scholars or ulama.
- Fatwa — This is a decree or recommendation issued by ulama as an answer to particular questions on religious issues. As a principle, fatwa is based on the existing hukm, but which hukm they want to pick and choose are all up to the individual ulama themselves. So this creates an interesting situation where one ulama in country A thinks it is permissible to play Pokemon games, while another ulama in fundamentalist country B thinks Pokemon is a creation of Jewish conspiracy to brainwash children with the idea of evolution.
- Madhhab — Islamic school of jurisprudence. There are four madhhabs in Sunni Islam (Hanafi, Maliki, Shafi'i, Hanbali) and three major and several minor madhhabs in Shia Islam (Ismaili, Ja'fari, Zaidi etc). Depending on madhhab, the rules/process of the interpretation of Islamic law can be slightly different. Some madhhabs can be stricter while some can be more tolerant or lax. Hanbali madhhab of Sunni Islam is known as the strictest school of jurisprudence, and this is widely popular in Saudi Arabia, Qatar and some other Gulf Arab states. Hanbali madhhab is known to be symbiotic with Salafism or Wahhabism.
- Ijtihad — An act of interpretation. Some progressive Muslim thinkers appropriated the term and advocated for ijtihad by individual Muslim themselves (in Protestant style), bypassing the hand of Muslim scholars who tend to be rigid and conservative. However, ijtihad in the hand of individual Muslims without any scholarly training can be a double-edged sword: there are many cases of Islamic extremists, such as Abu Bakr al-Baghdadi, reaching their own conclusion of radical ideas by making religious interpretations without relying on ulama.
- Ayatollah — In Shia Islamic tradition, Ayatollahs are high-ranking ulamas with strong expertise in fiqh and authority of ijtihad. Grand Ayatollah is the boss of all bosses (e.g., Ayatollah Khomeini).
- Scholarly views on Sunni Islam do not consider sharia as a natural law. Sunni Islamic orthodoxy considers sharia to be condensed into the scripture and needs to be interpreted from there, and Islamic legal rulings cannot be created from extra-scriptural sources like secular ethics and so on. This used to be one of major contentions between different Islamic schools of jurisprudence and philosophical traditions about 1,000 years ago. In the end the scripturalists won the philosophical debate.
- Modern Muslim scholars often provide additional rules to the process to mitigate issues that arise out of inflexibility and possible incompatibility of the strict procedure of usul al-fiqh in modern society. The most famous among them is maqasid al-sharia or "striving for common greater goods". This rule allows jurists to make a ruling based on extra-scriptural reasonings when they consider such rules are imperative to the survival of Muslims within secular or modern society. However, maqasid al-sharia is often criticized by more hard-line Muslims for allowing things that have been previously prohibited. Some examples of things permitted by maqasid al-sharia include the use of the conventional banking system which involves charging interest (riba, prohibited in the Qur'an).
- This means that when the Republicans are fearful of "sharia law coming to the town", they are essentially talking about "hukm coming to the town", which is much less scary sounding and possibly more awkward to pronounce.
- Example of fard: five daily prayers
- Example of mustahabb: shaving armpit hair
- Example of mubah: driving cars (outside of Saudi Arabia, previously)
- Example of makruh: divorce
- Example of haram: eating pork