"...In the linguistic practices of Islamic theologians, ethicists, and jurists in the Islamic tradition, the broad meaning of Shari‘ah is the way or path to well-being or goodness, the life source for well-being and thriving existence, the fountain or source of nourishment, and the natural and innate ways and order created by God. In the legal context, Shari‘ah is God’s eternal, and immutable law--the Way of truth, virtue, and justice. In essence, Shari‘ah is the ideal law in an objective and non-contingent sense, as it ought to be in the Divine’s realm. As such, Shari’a is often used to refer to the universal, innate, and natural laws of goodness. Islamic law, or what is called al-aḥkam al-Shar‘iyya or aḥkam al-Shari‘ah, refers to the cumulative body of legal determinations and system of jurisprudential thought of numerous interpretive communities and schools of thought all of which search the Divine Will and its relation to the public good. The stated objective of Islamic law is to achieve human well-being (tahqiq masalih al-‘ibad). Islamic law is thus the fallible and imperfect attempt by Muslims over centuries to understand and implement the Divine norms, explore right and wrong, and to achieve human welfare...."
ON ISLAMIC LAW
"...Importantly, what is called Islamic law is not contained in a single or few books. Islamic law is found in an enormous corpus of volumes that document the rulings, opinions, and discourses of jurists over the span of many centuries. Despite the contextual and historical contingencies that constitute the complex reality of Islamic law, rather paradoxically, the Islamic legal legacy has been the subject of widespread and stubbornly persistent stereotypes and over-simplifications, and its legacy is highly contested and grossly understudied at the same time. Whether espoused by Muslim or non-Muslim scholars, highly simplified assumptions about Islamic law, such as the belief that Islamic legal doctrine stopped developing in the fourth/tenth century, the purported sacredness and immutability of the legal system, or the phenomenon of so-called Qadi justice (essentially, a type of law that is individualistic, unpredictable, and irrational) are, to a large extent, products of turbulent political histories that contested and transformed Islamic law (or what is commonly referred to as Shari‘ah) into a cultural and ideological symbol. Currently, our knowledge of the institutions, mechanisms, and micro-dynamics, discourses, and determinations of Islamic law in various places and times is very limited. At the very minimum, however, it is clear that Islamic law is a shorthand expression for an amorphous and formless body of legal rulings, judgments, and opinions that have been collected over the course of many centuries. On any point of law, one will find many conflicting opinions about what the law of God requires or mandates..."
ON SHARI'AH VS. SHARIAH LAW
"...The term Shari’a is often erroneously equated with Islamic law. Although, both in Western and native discourses, it is common to use Shari’a interchangeably with Islamic law, Shari’a is a much broader and all encompassing concept. In the linguistic practices of theologians, ethicists, and jurists, the broad meaning of Shari’a is the way or path to well-being or goodness, the life source for well-being and thriving existence, and the natural and innate ways and order created by God. Hence, in Islamic literature the term is employed to refer not just to the way-of-life, or what one may call the philosophy and method of life of Muslims alone, but also to any other group of people bonded by a common set of beliefs or convictions. Therefore, Islamic literary sources such as the Qur’an will often speak of “the ways of previous generations” (shar’ or shari’at man sabaq or man qablana), or “the Jewish way-of-life” (shar’ or shari’at al-yahud) or even “the methods of Greek logicians” (shar’ al-falasifa or tariqat al-falasifa).
"In Islamic legal usage, typically, the expression shari’at Allah or shar’ Allah refers to the broad concept of the all-inclusive, and total path to and from God, which equated by necessity to the path leading to and resulting from social goodness (ma’ruf) and moral goodness (husn or husna). Shar’ Allah or Shari’a does not denote a positive set of divine commands with which humans must comply, but rather the ultimate good God desires for human beings.
"On the other hand, Islamic law, or what is called al-ahkam al-Shar’iyya or ahkam al-Shari’a, refers to the cumulative body and system of jurisprudential thought of numerous communities and schools of thought about the Divine Will and its relation to the public good. Islamic law is thus the fallible and imperfect attempt by human beings over centuries to explore right and wrong and to discern what is good for human beings. The moral and ethical foundations and principles of natural justice in Shari’a are accessible and cognizable by human beings, but this does not necessarily lead to a determinative system of law. Shari’a, as the foundations of and pathway to goodness, is everlasting, unchangeable, eternal, and perfect. But these foundations and pathway are not perfectly cognizable or realizable by human beings. Moreover, positive legal commandments that follow from or are based on these foundations and pathway are indeterminate, changeable, and contextual.
"In the remainder of this paper I will use the word Shari’a in the proper sense of the word, i.e. to refer to the foundational pathway to goodness and the natural principles of justice. I will use the expression Shari’a law to refer to positive Islamic law or the ahkam, the positive legal commandments deduced and expounded through centuries of cumulative legal practice..."
ON THE QUR'AN, THE SHARI'AH AND ISLAMIC LAW
"...Muslim and non-Muslim writers often refer to Islamic law as shari'a law, which is not entirely accurate. Linguistically, the word shari'a literally means the fountainhead that quenches the thirst of living beings or the way to goodness. Jurisprudentially, the shari'a is the revealed guidance of God--perfect, complete, incorruptible, immune, and immutable. In a sense, the shari'a provides the skeletal ethical and moral norms of the Islamic legal system.
"The main, but not exclusive source of the shari'a is the Qur'an, which focuses on general ethical and moral principles and a few specific laws. Roughly, there are eighty verses in the Qur'an that might be seen as laws in the strict sense, but the Qur'an is mainly a book of ethical and moral teachings. The specific laws that are considered a part of the immutable shari'a must fulfill two criteria: first, they must be stated by the Divine in a clear, specific, and unambiguous fashion, and second, the specific law must by its very nature fully embody the ethical principle that it is intended to articulate. Examples of such laws would include the command to pray five times a day, fast during the month of Ramadan, or give alms, and the prohibitions against extra-marital sex, slander, or the consumption of alcohol and pork. Another example would include the Qur'anic command that all contracts be consensual and free from coercion, fraud, deception, or misrepresentation, and also that parties to a contract must in good faith make every effort to honor their promises. Muslim jurists argued that laws such as these clearly mandated by God, are stated in an unambiguous fashion in the text of the Qur'an in order to stress that the laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations. It is important to note that the specific rules that are considered part of the Divine shari'a are a special class of laws that are often described as Qur'anic laws, but they constitute a fairly small and narrow part of the overall system of Islamic law. In addition, although these specific laws are described as non-contingent and immutable, the application of some of these laws may be suspended in cases of dire necessity (darura). [FN12] Thus, there is an explicit recognition that even as to the most specific and objective shari'a laws, human subjectivity will have to play a role, at a minimum, in the process of determining correct enforcement and implementation of the laws..."
ON SHARI'AH VS. FIQH:
"In order to engage in a more nuanced discourse on the dynamics between the Shari‘ah and the state, it is necessary that we develop a more sophisticated understanding of Shari‘ah itself. I reserved this issue to the end because it was necessary that we lay a sufficient foundation before engaging this topic. As part of this foundation, it is important to appreciate the centrality of Shari‘ah to Muslim life. The pre-modern jurist Ibn Qayyim appropriately captures this sentiment in the following statement describing Shari‘ah:
'The Shari‘ah is God’s justice among His servants and His mercy among His creatures. It is God’s shadow on this earth. It is His wisdom which leads to Him in the most exact way and the most exact affirmation of the truthfulness of His Prophet. It is His light which enlightens the seekers and His guidance for the rightly guided. It is the absolute cure for all ills and the straight path which if followed will lead to righteousness…It is life and nutrition, the medicine, the light, the cure and the safeguard. Every good in this life is derived from it and achieved through it, and every deficiency in existence results from its dissipation. If it had not been for the fact that some of its prescriptions remain [in this world], this world would become corrupted and the universe would be dissipated…If God would wish to destroy the world and dissolve existence, He would void whatever remains of its injunctions. For the Shari‘ah which was sent to His Prophet …is the pillar of existence and the key to success in this world and the Hereafter.”
"Shari‘ah is God’s Way; it is represented by a set of normative principles, methodologies for the production of legal injunctions, and a set of positive legal rules. As is well known, Shari‘ah encompasses a variety of schools of thought and approaches, all of which are equally valid and equally orthodox. Nevertheless, Shari‘ah as a whole, with all its schools and variant points of view, remains the Way and law of God. The Shari‘ah, for the most part, is not explicitly dictated by God. Rather, Shari‘ah relies on the interpretive act of the human agent for its production and execution. Paradoxically, however, Shari‘ah is the core value that society must serve. The paradox here is exemplified in the fact that there is a pronounced tension between the obligation to live by God’s law, and the fact that this law is manifested only through subjective interpretive determinations. Even if there is a unified realization that a particular positive command does express the Divine law, there is still a vast array of possible subjective executions and applications. This dilemma was resolved, somewhat, in Islamic discourses by distinguishing between Shari‘ah and fiqh. Shari‘ah, it was argued, is the Divine Ideal, standing as if suspended in mid-air, unaffected and uncorrupted by the vagaries of life. The fiqh is the human attempt to understand and apply the ideal. Therefore, Shari‘ah is immutable, immaculate, and flawless -- fiqh is not..."