What is sharia — and why it isn't the same thing as fiqh

Sharia is the path: the whole of God's guidance in the Qur'an and the example of the Prophet ﷺ, covering worship, character and dealings between people. Fiqh is what qualified scholars understood that guidance to require — knowledge derived from evidence, argued in books, revised across generations and recorded in four Sunni schools that have disagreed with one another for twelve centuries. Nearly everything called “sharia law” in English is in fact fiqh: one school's fiqh, or one modern state's legislation drawing on it. And in Canada, none of it is law — Canadian law governs here, and criminal law is the Criminal Code.

Sharia: the path

The Arabic word sharīʿa names a path — in the sense the classical lexicographers give it, the track leading down to a watering place, the way to the water. The word itself appears once in the Qur'an, at Surah al-Jathiya 45:18, which tells the Prophet ﷺ that he has been set upon a sharīʿa of the matter and instructs him to follow it. The root behind it occurs five times in four forms: the cognate noun shirʿa at Surah al-Ma'idah 5:48 — “to each of you We have ordained a code of law and a way of life” — and the verb at Surah ash-Shura 42:13 and 42:21, of what was ordained for the prophets before him.

In classical usage the word means the whole of what God has laid down for a people: belief, worship, character, and the rules that govern dealings between people. It is not a penal code, not a court system and not a body of case law.

Fiqh works are conventionally organised in two halves, and the shape tells you what the subject is. The first, ʿibādāt, covers acts of worship: purification, prayer, zakat, fasting, hajj. The second, muʿāmalāt, covers dealings between people: sale, lease, partnership, marriage, inheritance, procedure. The division is set out in those terms in Oxford Islamic Studies. What we draw from it is our own reading rather than a proposition any classical jurist put in these words: only part of the second half looks like law in the English sense, much of both halves describes what a person owes God rather than what a court could order, and the classical manuals give more pages to purification and prayer than to anything a modern legal system would recognise as its subject matter.

Fiqh: the human jurisprudence

Fiqh means understanding. The Qur'an uses the verb at Surah at-Tawbah 9:122, of a group who devote themselves to gaining understanding of the religion, and the Prophet ﷺ is reported in Sahih al-Bukhari 71 as saying that when God wishes good for a person He gives him understanding of the religion. As a technical term the jurists defined fiqh as knowledge of the practical rulings of the sharia, acquired from their detailed evidence — and every word of that definition puts fiqh on the human side of the line. It is knowledge acquired, derived, from evidence.

That is the whole distinction, and it is the standard one: Oxford Islamic Studies defines sharia as the divinely mandated path and fiqh as the human understanding of it — and, being human understanding, “open to debate, reinterpretation, and change”. One is revelation and is not open to revision. The other is scholarship — argued in books, revised across generations, and plural by construction, because two jurists of equal competence can read the same verse and the same hadith and arrive at different rulings. The tradition has a settled name for that: ikhtilaf, legitimate disagreement, treated as a normal feature of the discipline rather than a defect in it.

This is why there are schools. Hanafi, Maliki, Shafiʿi and Hanbali are four disciplined traditions of reading the same Qur'an and the same hadith, each carrying an unbroken chain of scholarship over a thousand years long; what they agree on is far larger than where they part. Each school's positions are set out school by school on The Four Madhahib.

It also means that no state's statute book is sharia. Codification is a modern development: the Ottoman Mecelle, drafted between 1869 and 1876 under Ahmed Cevdet Pasha, is generally identified as the first attempt to put Islamic legal material into the form of a European-style code, and it drew on the Hanafi tradition while borrowing its structure from nineteenth-century civil codes. Every national code since has made its own selections. So the laws of Saudi Arabia, Iran, Pakistan, Indonesia, Morocco and Nigeria differ from one another — they are legislation, produced by states, drawing on fiqh to differing degrees and shaped by each country's own political history.

How fiqh classifies an act

Fiqh does not sort behaviour into lawful and unlawful. It sorts it into five categories, the al-aḥkām al-khamsa, which describe an act's standing before God:

• Wajib / fard — obligatory. Rewarded for doing, sinful to omit. The five daily prayers, the fast of Ramadan, the fixed inheritance shares.
• Mandub / mustahabb — recommended. Rewarded for doing, not sinful to omit. Voluntary fasts, extra charity.
• Mubah — permitted. Neither rewarded nor blamed. The default for the great majority of ordinary life.
• Makruh — disliked. Better left, but not sinful to do.
• Haram — forbidden. Sinful to do, rewarded for avoiding.

What the law is understood to be for

Classical jurists asked what the rulings were protecting, and answered with the maqāṣid — the aims of the law. Al-Juwayni sorted the aims into three ranks, from the indispensable down to the merely refining; his student al-Ghazali, in al-Mustasfa, set out the five things the law exists to preserve — religion, life, intellect, lineage and property — and it is al-Ghazali's list that became standard. Al-Shatibi, in al-Muwafaqat, built the fullest classical theory on it. Egypt's Dar al-Ifta still frames the higher objectives of Islamic law in these terms today.

The maqasid matter here because they are the mechanism by which the tradition reasons about circumstances its founders never saw. When a contemporary body considers a question the classical books do not address — a registered retirement account, a mortgage product, an organ transplant — the argument is typically conducted in the language of aims and of maslaha, benefit. That is jurisprudence doing its ordinary work, not an exception to it.

Criminal law, the hudud, and the Criminal Code

Classical fiqh divides offences three ways. Ḥudūd are fixed penalties the jurists derived from specific texts for a short, closed list of offences: unlawful intercourse and false accusation of it (Surah an-Nur 24:4), theft (Surah al-Ma'idah 5:38), brigandage (Surah al-Ma'idah 5:33), and — in the majority view — intoxicants (Surah al-Ma'idah 5:90); apostasy and armed rebellion were disputed additions. Qiṣāṣ covers homicide and wounding, where Surah al-Baqarah 2:178 provides for retaliation but expressly contemplates the victim's family pardoning instead and taking compensation. Taʿzīr is everything else — discretionary punishment set by the judge. The hudud carried extraordinary evidentiary bars: Surah an-Nur 24:4 requires four witnesses to the act itself for an accusation of unlawful intercourse, and an accuser who cannot produce them is himself liable to eighty lashes for the false accusation. Over the maxim the jurists built on this — idraʾū l-ḥudūd bi-l-shubuhāt, avert the fixed penalties wherever doubt exists — Maribel Fierro's study for Brill traces how the saying, originally transmitted from the Companions, came to be reported as prophetic, was relied on heavily by Hanafi and Maliki jurists, and was rejected in that prophetic form by Hanbalis and by the Zahiri Ibn Hazm. One point is settled across all four schools and is worth stating precisely, since it is the part most often lost: as Rudolph Peters sets out in Crime and Punishment in Islamic Law (Cambridge University Press, 2005), the hudud presuppose a constituted public authority. They were never the business of an individual, a family or a self-appointed group.

In Canada, criminal law is the Criminal Code. Criminal law is an exclusively federal power under s. 91(27) of the Constitution Act, 1867, and s. 9 of the Criminal Code provides that, notwithstanding anything in that or any other Act, no person shall be convicted of an offence at common law, of an offence under an Act of the Parliament of England, Great Britain or the United Kingdom, or of a pre-Confederation provincial offence — the sole saving being the courts' contempt power. There is no route by which any religious law creates an offence, a defence, an evidentiary rule or a penalty in this country. No Canadian court applies the hudud, no tribunal has jurisdiction to, and a Muslim who commits an offence in Canada is charged, tried and sentenced under the Criminal Code exactly as anyone else is. That is the entire Canadian position on the subject.

Where the schools differ

On what sharia is, and on the five categories themselves, the four schools are not recorded as differing. Where they do differ is in how finely they cut the categories — and the Hanafi school cuts them one step finer than the other three, with consequences that show up in ordinary practice. The rows below are about the vocabulary of obligation, not about any particular rule.

The Canadian legal position

Canada has one law of general application. It governs everyone here, of every faith and none, and nothing in Islamic law has force as law in Canada. What is protected is the freedom to practise: s. 2(a) of the Canadian Charter of Rights and Freedoms guarantees freedom of conscience and religion, so praying, fasting, eating halal, contracting a nikah and being buried according to Islamic rites are lawful in exactly the way the practices of any other religion are lawful.

Canadian courts also decline to decide religious questions. In Syndicat Northcrest v. Amselem, 2004 SCC 47, the Supreme Court held at para. 50 that “the State is in no position to be, nor should it become, the arbiter of religious dogma”, and at para. 51 that while a court “is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant's belief”. So no Canadian court will ever rule on what sharia requires. It is not competent to, and it does not claim to be.

Two consequences follow. First, where a person voluntarily puts a religious obligation into a contract, ordinary contract law applies to the contract — that is what the Supreme Court did in Bruker v. Marcovitz, 2007 SCC 54, enforcing an agreement with religious content as a civil obligation. Second, religious adjudication has no civil footing. Since the Family Statute Law Amendment Act, 2006, “family arbitration” is defined in Ontario's Arbitration Act, 1991 as arbitration “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction”; s. 2.2 provides that where a family matter is decided in a process not so conducted, “the process is not a family arbitration” and “the decision is not a family arbitration award and has no legal effect”. The chronology behind that change is set out on the 2003–2006 Ontario page.

Where they meet

For a Muslim living here the practical shape is simple to state. Sharia binds you as personal religious obligation. It acquires civil force only when you put it into an ordinary Canadian instrument — a will, a contract, a marriage agreement, a beneficiary designation. Canadian law leaves a wide lane for that: testamentary freedom is broad enough that a will can set out the fixed shares exactly, which is the whole subject of how to have an estate divided Islamically.

The sharia–fiqh distinction stops being academic the moment you sit down with a lawyer. Because fiqh is plural, “Islamic law” does not by itself name a determinate rule — and a Canadian court cannot supply one, having just told you in Amselem that it will not choose between interpretations of belief. So the instruction has to be made specific before it is written down: which school, which shares, which fractions, for which surviving relatives. Our inheritance calculator asks which school you follow before it asks anything else, for precisely this reason, and the question of whether the document should name the school at all is answered at should the will name which madhhab I follow.