INCEIF

The Global University of Islamic Finance

Kuala Lumpur Malaysia

Compare and Contrast between Fiqh and Shariah

SH5013 Shariah Aspects in Islamic Finance

Facilitator

Dr. Sa'idAdekunleMikail

Prepared by

AbdulkadirSh Mohamed Abukar

1400211

MASTERS IN ISLAMIC FINANCE PRACTICE

(MIFP)

Semester January 2015

 Abdulkadir Sh Mohamed Abukar 1400211 MIFP INCEIF

Abstract

Islamic law is the most comprehensive legal framework that guides the life of the
mankind in this world and Hereafter. It contains Shariah and Fiqh which together form a legal
rulings and regulations. Shariah comprises of basically Qur’an and Sunnah which are the
primary sources of Islam. Shariah tells us how to perform the obligations in accordance of
Allah’s will, this is divine law, while Fiqh is subject to human involvement where the importance
of research comes in this matter. The practicality and application of Divine law needs specialists
who specialize and expertize in Islamic jurisprudence to come legal rulings at the level of Fiqh,
these specialists are called Jurists or mujtahid. The specialist must recognize the issues related
to authenticity, abrogation, and supersession in the time of interpreting and deriving legal
framework from shariah or Islamic law. Hence in this assignment I am going through the
similarities and differences between Shariah and Fiqh.

Key term of research reviewing

1) Shariah and Fiqh 2) Ijtihad 3)Legal Maxims

Objectives of Research

1. Key differences and similarities between Shariah and Fiqh.

2. The importance of Maslaha or public welfare in Islamic legal framework
3. How shariah and Fiqh is applied in Islamic financial transactions.

Table of Contents
Contents Page Number
1. Introduction 2
2. Sharia 3
3. Fiqh 7
4. Similarities between Fiqh and Shariah 12
5. Tools of Fiqh that relates to Shariah 14
6. Application of Fiqh and Shariah in Islamic finance 15
7. References 16

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1. Introduction

Laws and constitutions are laid down in order to regulate full legally framework that have
implicit ways to guide and restrict among individuals, society, and organization. The law plays
key role in the existence of this world. If there is no law that guides and regulates in the country,
the world would become chaos, and lack of stabilitythe laws are divided into two; Divine Law
and man-made law (constitutions like Common law and English law). Man-made law is the law
that is built on human tradition, customs, experience and cases and the creator of such law is
mankind who is imperfect therefore this kind of law can be amended or changed any time
needed.

Divine law is the law that refers to the Quran and Sunnah which are the primary sources
of law in Islam. These two sources complement to each other. Quran occupies a unique status in
Islam, it is the speech of Allah revealed to Prophet Mohamed PBUH through Angel Gabriel. It
contains 114 chapters and 6636 verses whereby 500 of them relate to Islamic law. The revelation
sustained twenty-three years of the prophet hood of our Prophet. Allah guaranteed and promised
to protect Quran from any fabrication and falsehood alteration and removals. Hence Qur’an is
complete law and un-changeable sources. Allah says: “Nothing we have omitted from the
book 1”This Quranic verses emphasizes the completeness of Quran in terms of legal framework,
historical events, signs of contemplation, eschatological matters; Heaven and Hell, and Day of
Judgement. On the other hand,Sunnah comes in second positions, Sunnah is a broader term; it
refers to the sayings, actions, tacit of our Prophet to describe the conduct of the Prophet and his
companions in a variety of settings and contexts. The main function of Sunnahis to interpret
Qur’an comprehensively in terms of Ibadat, Mu’amalat, munakahat and Jinayat.
Islamic law encompasses a broad aspects of topics ranging from the laws of worshiping
God, criminal law, family law, commercial and transactional law, international law, and
constitutional law. Divine law also called Islamic law or sharia law is law of Allah on His
creation. This divine law is the combination of Shariah and Fiqh. Therefore, in this paper, the
focus would be the understanding of the differences and similarities between Shariah and Fiqh.

1
Surat al An’am, verse 38

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2. Sharia

The word sharia means root or path to the watering place. Technically the word sharia
has broader meaning it covers the full complete legal frameworks, principles, doctrine standards,
code of ethics and morality hence sharia touches the each aspects of human life in this world and
Hereafter. Islamic scholars come out different definitions towards the word Shariah and how it is
different from Fiqh, Imam Al Qutubi 2definesShariah as the canon law of Islam, all different
instructions and rules that transmitted by Allah to his creatures in order to obey Him. Allah has
created man and Jinn in order to worship him and also to develop the world in accordance to
sharia rules. Islamic scholars describe Shariah as Allah’s commandments and rules and
regulationsthat were revealed to our Prophet PBUH in order to comply and apply it in this world
and hereafter.

Sharia is the combination of the Islamic teachings and legal systems which was revealed
to prophet recorded in the Qur’an as well as in Sunnah. Shariah is the comprehensive regulatory
framework for all mankind. It basically contains duties and a code of obligations. In the Islamic
legal frameworkShariah is regarded as the rules and commandments that were prescribed by
Allah to mankind. It consist of commands, prohibitions, guidance, policies and principles that
God made it mandatory to mankind pertaining to their conduct in this world and salvation in the
Hereafter.

Sharia is the knowledge that pertains laws relating to the acts and behavior of the
mankind, this knowledge is derived from real sources in Islam meaning to say that’ Qur’an and
Sunnah, these sources represent the commands of Islam in general and specific matters and their
application.Shariah is code of life which consists ofa creed based on true philosophy, faith,
behavior and obligation in the practical matters.We can conclude that shariah is made up of two
main sources; Quran and Sunnah. One who neglects and leaves these laws behinds is entitled to
be punished in this world and Hereafter. Shariah rules are not subjected to change they always
remain constants. Whatever Allah and his messenger make it permissible will always remain the
same rule and whatever they make it forbidden will always remain the same. For example, the

2
Lahsasna D.A. (2011) Shariah Aspects of Business and Finance. Kuala Lumpur: MajuTulisSdn. Bhd.

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permission of buy and sale will always remain the same and the prohibition of Riba remains the
same and cannot subject to change.

Sharia is the commandment of Allah that encompasses the real aspects of human life; such
as; in terms of doctrine or belief of the oneness of Allah, His attributes, His prophets, revelation,
unseen matters, sharia also covers in terms of worship; performing the five pillars of Islam,
spirituality, devotion and contemplation, in terms of human interaction, or the relationship
between man to man, sharia covers family law, commercial law which plays key role to the
society, sharia also emphasizes ethical and moral conduct such as integrity, honesty,
transparency, accountability. Shariah doesn’t silent from politics but it covers the administration
of land, protection of land and border. Sharia 3 is divided into three main subtitles that contain
commandments and injunctions from Allah to Mankind;

1. Al ahkam Al itiqiadiyyah: this part contains the laws pertaining belief the oneness of
Allah and the Day of Judgment, the belief of qadr and belief in death and life.
2. Al ahkam al akhlaqiyyah: these laws relates ethical and morality of the human like beng
transparency, accountant, integrity, truthfulness and being honesty.
3. Al ahkamAmaliyyah: these rules relates the actions committed by mankind and its
relation with others.

On the other hand, Islamic scholars classified shariah interms of the objectives;
mandatory law and declaratory law. For the mandatory law, it can be classified in terms of;
obligatory, recommended, permissible, and reprehensible and prohibited. For the declaratory
laws, it also relates with mandatory but it shows that the mandatory factors may cause the rise of
another thing or its hindrance. For the mandatory law or taklifi in shariah it is divided in to:
obligatory: this law make it compulsory on mankind. Omitting such obligatory act is subjected to
punishment. While its commitment is rewarded. E.g. performing prayer and fasting are
obligatory actions whereby their negligence is subject to punishment and their performance is
rewarded. The recommended and reprehensible laws that do not subject to punishment but
omitting them is rewarded. Permissible and prohibited are laws that opposite to each other. The
permissible actions carry the option of omission and commission. While prohibited laws subject

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to punishment if it is committed and rewarded if it is omitted.For the declaratory parts, the laws
are divided into dependent factors and independent factors for example the independent factors
influence the occurrence of the dependent factor or hindrance it, these indicators are: cause,
conditions, valid and null/void. These indicators will influence the commitment of mandatory
laws or hinder it.

2.1 The Holy Qur’an

Quran is the miracle of our prophet PBUH, it is the speech of Allah that was transmitted
to Prophet Mohamed through Gabriel, it is the primary sources prior to Sunnah, its protection
from changing and fabricating was guaranteed by Allah and no one can come out something
similar to or resembles Quran, Allah says: “Verily, it is we who have sent down the Dikr and
surely we will protect it” 4 . Allah also says: “Say, if the whole of mankind and jinn were to
gather together to produce the like of this Quran, they couldn’t produce the like thereof; even if
they backed-up each other with help and support” 5. Hence, in Islam, the Quran occupies a
unique and singular status as the literal word of God transmitted by the Angel Gabriel to the
Prophet Muhammad. Therefore, all legal rulings are inclusive in Qur’an.

Quran was sent down in the two sacred cities in Saudi Arabia; Makkah and Medina. The
revelation of the Quran sustained twenty-three years of the prophet hood of Mohamed PBUH.
Nineteen out of the total 30 parts of the Quran were revealed down in Makkah. The
characteristics of Makah verses include: topics related to faith and belief, Oneness of God, the
Prophethood of Mohamed PUBH, and the existence of Hereafter. On the other hand, Medina
verses and chapters emphasize legal rules and regulations which encompasses social, legal,
political, economic life of the community.

Quran contains 114 chapters and 6636 verses in which at least five hundred of them hold
definite legal elements. These legal elements form the legal framework for the guidance of
mankind in this world and Hereafter.

4
Surat Al Hijr, verse 9
5
Surat Al Isra, verse 88

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Rulingsrevealed in the Quran are divided into three parts 6:

 Rules related to Faith.

 Rules related to Worship.
 Rules related to Practices.
2.2. Sunnah

It is the second sources of Islamic law after Quran, it refers to all of the sayings of our
prophet, his actions, whatever he has tacitly approved, his physical attributes and character. The
authority of Sunnah as the secondary sources is emphases by Allah. Allah says: “Nor does he say
of his own desire. It is no less than inspiration send down to him 7”. In these two verses, Allah
made it clear the fact that whatever delivered from our Prophet doesn’t come out of his own
desire but it is inspiration and revelation of Allah.

Sunnah plays five key roles in Islamic legal framework, it reemphasizes and recaps the
rulings of the Quran. Sunnah clarifies and elaborates Quran. Such as; Quran order performing
prayers in general but Sunnah explains how to perform and when to perform and how many
times to perform prayer. Sunnah also enacts issues and rulings on which the Quran did not talk
about it.

Sunnah is classified in three main parts which we can summarize below:

1. The Sayings of our prophet.

2. His actions, and;
3. His tacit.

The verbal sayings of our prophet is called Sunnah Qawliyah. In terms of his actions, it
refers to the ways he performed prayer, fasting, and performing pilgrimage. In terms of tacit, it
refers to the issues that our prophet kept silent.

6
7
Surat AL Najm verses 3 and 4

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3. Fiqh:

Fiqh is the outcome or product by way of Ijtihad and deduction of the jurist and scholars
from the specific sources of the Holy quran and Sunah. Hence Fiqh plays a key roles in the
system of Islamic legal framework, it complement shariah. It is the science of Islamic rules that
is implied the exercise of wisdom and intelligent when the rules and laws are derived from laws
from Quran and Sunnah. The word Fiqh in Arabic meaning is understanding or comprehension,
therefore it is said that Fiqh is the complete composition from Quran, Sunnah, Ijma and Qiyas to
form and shape Shariah legal framework. Shafi’I jurists define Fiqh as follows:

‫اﻟﻌﻠﻢ ﺑﺎﻷﺣﻜﺎم اﻟﺸﺮﻋﯿﺔ اﻟﻌﻤﻠﯿﺔ اﻟﻤﻜﺘﺒﺔ ﻣﻦ ادﻟﺘﮭﺎ اﻟﺘﻔﺴﯿﻠﯿﺔ‬

“it is the knowledge of the sharai’ ahkam (legal rules), pertaining to conduct, that have
been derived from their specific evidences 8”

Imam Abu Hanifah defined Fiqh as the knowledge of what is for man’s self and what is
against man’s self. While Imam al Ghazali defined al Fiqh as the science of the rules of law. The
consensus definition of Fiqh among Muslim jurists is that Fiqh is the science that encompases
the laws from Qur’an, Sunnah, Ijma and Qiyas. The importance if Ijma and qiyas as the
secondary sources of Islam is emphasized by the famous hadith; Mu’ad ibn Jabal 9 was sent to
Yemen then the prophet asked him “according to what will you judge if a problem is brought to
you” he replied according to the Quran, and he is asked if you do not find from Quran, he replied
according to Sunnah and he is asked if you cannot find from Sunnah, he replied I will strive and
make ijtihad to interpret with the exertion of my reason” after that our prophet said
Alhamdulillah who has endowed to his messenger with what His messenger is willing to approve
of”. From this hadith, once can come out the importance of Fiqh in order to deliver legal
solutions for the current problems faced by Muslims.

Unlike shariah, Fiqh is subject to human intervene, and can be changeable accordingly,
different scholars have different conception and understanding in terms of deriving and applying
such laws from Quran and Sunnah. Ijma and Qiyas are the key factors in Fiqh as the way to find
solutions for the questions arising in this world.These concepts can be easily described by using

8
Wahabah Al Zuhayli (1997), Usul al Fiqh al Islami, Tehran, Dar Ihsan, Vol-1,P19
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Lahsasna D.A. (2011) Shariah Aspects of Business and Finance. Kuala Lumpur: MajuTulisSdn. Bhd. P unit1/6

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an analogy of a lawyer who derived a knowledge from the law statute or law cases before rely it
to his client.In Islamic legal framework, there are four schools of Fiqh, which complement to
each other but carry independent opinions according to the interpretation of the Quran and
Sunnah. Since Fiqh is difined earlier as the science of exerice intelligence to drive a solutions as
the differences of opinion among the fuqaha about their own independent interpretations of
quran and sunnah and how the fundamental concepts are applied in Fiqh problems.

3.1.The following below are four sunni schools which are still exist today:-
1. Hanafi School: Abu HanifahNu’man ibn Thabit was born in Kufah, Iraq 80years after
hijrah. He was an experts in deriving legal frameworks from quran and Sunnah. Today
many muslimcommonuity and countries depends on his thoughts in Fiqh.
2. Maliki School: Malik Ibn Anas Ibn Malik was born in Medina, Saudi Arabia in 93 after
Hijrah of our prophet. He started to attend religious teaching in masjids at very young age
until he become one of the Islamic teacher at younger ages. His famous Islamic book is
called Al muwatta.
3. ShafieShoold: Mohamed Ibn idris al shafi’I born in Gaza 150 after Hijrah. He got the
ability to exercise his intelligent to give opinion at the age of 15years old. He was one of
the students of Imam Malik. His famous book is Ar- Risalah.
4. Hambali School: Abu Abdillah Ibn Hanbal was born in Baghdad in Iraq 164 years after
Hijrah. He was one of the students of Imam al sha’fi. He did exercices intelligence to
derive major Fiqh rulings.

These four schools of Fiqhplayed a key role for the development of Islamic law, jurists
come out new ruling and regulations with the help of these four Fiqh schools. Today Muslim
world is divided in terms of the applications of Islamic law according to these four schools. This
doesn’t mean that these four schools contradict to each other but they complement to each other.
According to the book of sharia aspects in business administrations and finance by
Ahcenelahsana 10, Fiqh is flexible framework that have both changeable and fixed rulings.
Rulings and laws which are derived from Quran and Sunnah cannot be changed and remain
constant. The reason behind the constant of such laws we have discussed in sharia part.
Whatever come from Quran and Sunnah remains constant no human intervene is allowed. Unless

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there is a necessity of doing so. Rulings derived by jurists which is based on their comprehension
and intelligent to interpret from quran and Sunnah. Jurists apply secondary sources in deliverying
such rules the secondary sources are; Al istihsan, consideration of public interest, presumption of
continuity, and urf therefore, these rulings subject to change and human intervene.

3.2.What is the position of Fiqh in Islamic legal framework?

To answer this question, one must bear in mind that Fiqh is the most essential
components in Islamic legal framework. Fiqh complements shariah to make fully Islamic
framework, itconstitutes legal governance framework which is built on relationship based on
accountability and responsibility of Man to Allah and between men to men. Lack of such legal
framework leads chaos situation in the situation whereby no rules and regulation that govern the
affairs of human life in the society.

Fiqh is broader topic which encompass aspects of life. It is not restricted to ritual aspects
of Islam alone but it is broader than that. Fiqh or Islamic jurisprudence is divided into two: rules
related to worship and rules related to transactions between man to man. The rules related to
relationship between Allah and Mankind and it concerns laws that regulate ritual and religious
observance such as; rulings related to prayer, rules related to fasting, giving zakat, and
performing Haj. These rulings covers a wide explanation about their commitment by the human
being. For instant when the asset is evaluated according to its zakat payments, jurists came out an
Islamic rule which is derived from Quran and Sunnah. On the other hand, the Fiqh that relates to
the human interactions and relationships between men to men, these rulings are called customary
rules and practice,these rulings emphasize the ruling and regulations among communities and
how they treat with each other in term of brotherhood, respect, honest, integrity. This ruling
covers the entire rules and regulations which is important for the existence of the mankind. They
include:

• Rules related family law.

• Rules related to commercial law transactions between man to man.
• Rules related to economic system of the state.
• Rules related to criminal law.

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• Rules related to political systems.

• Rules related to international law.
• Constitutional law and the administration of the land.

All these laws are derived from Quran and Sunnah to constitute Islamic legal framework.
Only qualified jurists are allowed to come up such legal framework by referring to the primary
sources of Islam, the legal that is derived by jurists must be in consensus agreement among them
before it is being applied.

The science of Fiqh is broad topic which is subdivided into two; Usul which means the
basic foundations of the law and Furu’ which means the branches of the foundation of the law.
Usul al Fiqh is collection of methods, principles by which the Fiqh is extracted mainly from
Qur’an and Sunnah, this methodology empowers the scholar the best way to deduct the Islamic
rulings from the legal sources, the sources are not only limited to Qur’an and Sunnah but it
extends to Ijma and Qiyas as the principle sources of Islamic law. Quran, Sunnah, Ijma and
Qiyas, as the primary sources of Islamic law, form comprehensive legal framework that paves
the way for the jurists to derive Islamic rulings, that are used by jurists in the time of deducting
the law.To sum up this, extracting legal system by way of Usulfiqh is done by three ways:

1. Base on the primary and secondary sources of Islam which form the basic legislative
sources in Islamic legal framework and they are; Primary sources: Qur’an, Sunnah,
Ijma’ and Qiyas. Secondary sources: Istihsan, Istihsab, Maslaha al-Mursalah, Sadd al
Darai, Urf or custom.
2. Arabic language plays an essential role in Islam, Allah SWT conveyed Quran in
Arabic to our prophet through Gabriel. Arabic is chosen by Allah to His revelation
thus, it is the key that facilitates in deriving Fiqh from the sources above, one should
have the basic knowledge of it in terms of Grammar and Sarf.
3. Quran is the miracle that Allah bestowed to His messenger Mohamed SAW therefore,
one should have the knowledge of its interpretation, Nasikhwalmansukh, Amm and
Khas, reason of the revelation, Dani and Qad’I, all these are the basic knowledge
which is the pre-conditions to have before deriving Islamic law From Islamic sources.

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Since laws are extracted by way of Usul al Fiqh, this may result different opinions and
rulings among jurists, since they are human and may agree and disagree in some points. This is
the cause of disagreements of many issues among Islamic scholars. The outcome of Usul al Fiqh
is Shariah and Fiqh. Usul al Fiqh is different from Shariah since it is the methodology of deriving
laws from Islamic legal sources and shariah is the divine law which is comprehensive and it
relates to our actions. The process of applying Usul al Fiqh in deriving laws from shariah and
Fiqh is called Ijtihad, it means paying an exhaustive efforts in order to find a solution for specific
and an identified problem. The one who specializes such knowledge is called Mujtahid. Ijtihad
cannot be applied in the text of the Quran and Sunnah which are conclusive in meaning such as
the prohibition of Riba, but it is only applied on the speculative issues in Qur’an and Sunnah that
requires further research. Therefore, we can conclude the differences between shariah and Fiqh in table
below:
Shariah Fiqh
Origin Divine law Man-made law by referring to Divine law
Dependency Body of law Part of shariah
• Worship (Ibadah)
• Faith (Aqidah) • Family law (Munakahat)
• Ethics (Akhlaq) • Commercial law (Muamalat)
Components
• Worship (Ibadah). • Criminal law (Jinayat)
• Commerce (Muamalat) • International relations

Humanly acquired by way of Ijtihad of

God- given by way of Qur’an and human knowledge and deliberation and
Sources
Sunnah exercise through referring shariah tools;
Qur’an and Sunnah
Some part of it fixed while it is subject to
Sustainability Unchangeable and fixed
human intervene.
General and comprehensive that Focus on specific in detail the legal and
Scope
governs human actions illegal acts of human

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4. Similarities between Fiqh and Shariah:

Islam encompasses both Shariah and fiqh and Islam is a way of life and mercy, Allah
says “And we did not send you (O Muhammad) except as a mercy for all creation 11”.From the
verse above, we can summarize that shariah and fiqh are interconnected in terms of objectivity
and strategy. In terms of objectivity, both Shariah and Fiqh have same objectives and purposes
that is to serve the best interests of the mankind and to achieve the ultimate goal in terms of
morality and ethics which represent the essence of Divinity on this world and Hereafter.In terms
of strategy, both shariah and Fiqh are the ways and guidelines that complements and inter-
connected to each other in order to guide the mankind to the right path from going astray.

Islamic law which contains shariah and Fiqh creates justice to the society and leads to
harmony. Fiqh and shariah are inter-connected to each other. Both Fiqh and shariah aim the
protection of the five necessities of the mankind which is Maqasid al shariah, that is to say:

1. Protection of Nafs.
2. Protection of religion.
3. Protection of intelligent.
4. Protection of Nasl.
5. Protection of wealth.

These five elements is most necessity points for the existence of the mankind, Shariah and fiqh
stand for the protection of them. Let’s define one by one:

1. Protection of Religion:to ensure the establishment and enforcement of Islamic religion

and achieving the objective of worshiping Allah Almighty by submitting the soul to him.
The protection of religions encompasses all kinds of worship which is defined by Qur’an
and Sunnah and further deeply elaborated by Islamic Fiqh law. The protection is in the
form of defending Islam as faith and religion.
2. Protection of Life: it is related to the sanctity and preservation of the lives of human
being. Allah laid down in Qur’an and Sunnah many legislatives that related to the
protection of life, such rules include: criminal law or Jinayat; such as the murderer who
intentionally killed innocent person is judged to be killed by law unless the family of the
11
Surat Al-Anbiya, verse 21

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victim forgives him/her. Allah says: “O ye who believe! The Law of equality is
prescribed to you in cases of murder… 12”
3. Protection of Family or Al Nasl: this law is related to the family law or Munakahat
which refers to marriage and divorce, it also emphasizes the prohibition of Zina and
adultery and punitive laws were laid down for those who commit Zina. Prohibiting
abortion, and promoting the existence life and creating love and harmony between
couples.
4. Protection of Intelligent:Islam gives a great concern to sound of the intellect of the
human, intellect is one of the greatest gift that Allah differentiated Mankind from other
creatures since intellect is the decision point that the human can distinguishthe good from
bad. Through intelligent one can recognize the Oneness of Allah Almighty and His
messenger, can perform prayer, fast, pay zakat, and go to pilgrimage, if there is no
intelligent one cannot perform all these, Hence the protection of intelligent is very
essential that is why Allah prohibited whatever can damage the intelligent of the
Mankind such as Wine.
5. Protection of Wealth: as a Muslim, one should recognize that the real owner of the
‫ا�ُ ْاﻟﻐَﻨِ ﱡ‬
wealth is Allah Almighty, man only owns wealthy as trustee. Allah says: “ ‫ﻲ َوأ َ ْﻧﺘ ُ ُﻢ‬ ‫َو ﱠ‬
ْ “God is rich and you are poor “(Quran47:38). Islam emphasizes earning of wealth
‫”اﻟﻔُﻘَ َﺮا ُء‬
by way of justice and equality, prohibition of gaining of wealthy in illegal way such as
through Riba financing, hoarding, greediness all these factors will cause rich to become
richer and poor to become poorer which results poverty and havoc in the Muslim society.
For this purpose, Islam put in placed a comprehensive legal framework that governs the
transaction among society.

There are additional objectives that Fiqh scholars derived them from shariah which
include: establishment of justice and equality among the society, promoting peace, social
security and solidarity among society, enforcement of doing good things and avoiding evil
actions, promoting moral values and ethics. All these will promote the existence of the mankind
in this world and Hereafter.

12
Surat Al Baqarah, verse 178

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5 Tools of Fiqh that Relates to Shariah

1. Maslaha: it means interest or benefit, it is the protection of the objectives of Islamic law.
Maslahah is one of the juristic devices that have always been used in Islamic legal theory to
promote public benefit and prevent social evils or corruption. Literally, maslahah is defined as
pursuing the benefit by avoiding its harm. What Muslim jurists mean by maslahah is the
seeking of benefit and the repelling of harm as directed by the Lawgiver or Shariah. 13Maslaha
is subdivided into three main points:

a. Masalih Al Mu’tabarah: these are benefits and interests that shariah recognizes it and
clearly emphasized in Quran and Sunnah, such as the prohibition of Riba as the prohibition
is aimed to safeguard the economic life of the human.
b. Masalih Al Mulghat: these are benefits and interests which makes human to desire but
Islam rejects such benefits, and it was clearly mentioned in Quran, such benefits include:
wine and gambling,Allah said in Quran “their harmfulness is greater than their benefit”.
c. Masalih al Mursalah: these are benefits which are neither mentioned nor ignored in
Quran and Sunnah. Khallaf mentions it as: “the benefits which the lawgiver did not impose
as a rule to be implemented, and neither there is any textual indication acknowledging it
nor rejecting it.” 14

The second tool of fiqh that relates to Shariah is Qawaid Al Fiqhiyyah: It is the basic
foundation of Fiqh that covers the general rule of Fiqh which is applied to all of its related
particulars. These general rules establishes the legal maxims of shariah and it is divided in to two
parts: primary maxims and secondary maxims.

Primary Maxims 15: are maxims which are unanimously agreed among the four thought of fiqh
schools, these maxims are:

 Actions are judged by the intention behind them. (AlUmuru bi-Maqasidihaa).

 Certainty is not overruled by doubts. (Al yaqniu la yazulubishshak).
 Hardship begets facility (Al Mashaqatutujlab at taysir).

13
Mirza Vejzagic and EdibSmolo, Maqasid al Shariah in Islamic Finance: An Overview, 4
14
Abd al-WahabKhallaf, ‘IlmUsul al-Fiqh (Cairo:Maktabah al-Da’wah al-Islamiyyah), 84.
15
Lahsasna D.A. (2011) Shariah Aspects of Business and Finance. Kuala Lumpur: MajuTulisSdn. Bhd.

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 Harm must be eliminated (Al darruyuzal).

 Custom is the basis of judgement (Al addatuMuhakamah)

These five legal maxims plays a key role in the establishment of Islamic legal framework.
They encompass the concepts, theories and tools that jurists use in order to understand the law.
Jurists who stand for deriving Islamic law through ijtihad can help with these legal maxims in the
time of deriving Islamic rulings. Legal Maxims plays an important role in Islamic law.

Secondary Maxims: these are maxims which do not reach the level of the primary maxims in
terms of comprehensiveness. Suchmaxims include the following two maxims:Alkharaj Bid-
Daman and Al ghunmu bi Al-ghurm.These two maxims basically mean that the entitlement of
the profit in doing business is intrinsically related to risk or responsibility for the loss of the
profit in business.

6. Application of Fiqh and Shariah in Islamic Finance

Shariah stand for the key part in Islamic finance that drives the trade and business
of Islamic financial institutions into Falah in this world and Hereafter. The rules and regulations
that IFIs need to abide come under Fiqh Muamalat which is part of Shariah. The sources of these
rules and regulationsmainly come from Quran and Sunnah, for example; the prohibition of Riba,
uncertainty and Gambling mentioned in Qur’an and Sunnah supported it while Ijma and Qiyas
emphasized their prohibition. The general objectives of Islamic financial institutions encompass
the five objectives of Maqasid al shariah which are public interest, being zakat oriented rather
than profit oriented and stakeholder’s maximization rather than shareholder’s maximization.
Islamic banks are obligated to have shariah advisory committee to make sure shariah
compliance, the function of such committee include reviewing and auditing and doing research
using Fiqh by doing Ijtihad applying the different opinions of the fourth schools of thought and
Qiyas in matters related to regulating new products in order to make sure compliance of shariah.
The ultimate purpose of Shariah and Fiqh is not the compliance of man-made laws such as Basel
or any other man-made regulatory acts but the guidance to Maqasid Al-Shariah remains constant
and obligation in Islamic finance, no compromising is allowed.

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References:

Qur;anic Verses:

1. Surat al An’am, verse 38

2. Surat Al Hijr, verse 9
3. Surat Al Isra, verse 88
4. Surat AL Najm verses 3 and 4
5. Surat Al-Anbiya, verse 21
6. Surat Al Baqarah, verse 178

Bibiliography

1. Lahsasna D.A. (2011) Shariah Aspects of Business and Finance. Kuala Lumpur:
MajuTulisSdn. Bhd.
2. Wahabah Al Zuhayli (1997), Usul al Fiqh al Islami, Tehran, Dar Ihsan, Vol-1, P19
3. Mirza Vejzagic and EdibSmolo, Maqasid al Shariah in Islamic Finance: An Overview, 4
4. Abd al-WahabKhallaf, ‘IlmUsul al-Fiqh (Cairo:Maktabah al-Da’wah al-Islamiyyah), 84.

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