ABSTRACT
Whatever the definition ofIslam, the 'whole duty of man' is to seek to divine God's will and to live individually and collectively in full and willing compliance with that will: 'we made for you a law, so follow it and not the fancies of those who have no knowledge' (Q45: 18). Inevitably, therefore, the revealed law plays a crucial role in Muslim thinking, but there is, and has always been, considerable argument over what constituted the divinely revealed law and the extent to which it is possible to distinguish between that law and fallible man's interpretation of it. Indeed, the terms used, though precisely defined, are frequently used loosely and confusingly. All jurists are agreed that the shari 'a (literally 'the path') comprises the entire corpus of divinely revealed law, but there is no agreement upon the precise contents of that corpus. The term Jiqh (literally 'understanding'), variously defined as 'jurisprudence', 'jurisprudential interpretation', and 'precise and profound deducing of the Islamic regulations of actions from the relevant sources', 1 means the process by which the rules of law and conduct were elaborated by the jurists by rational deduction from the traditional sources and precedent. The terms are often used interchangeably, however, and there seems no clear-cut and agreed distinction between the two in Sunni doctrine. Somewhat confusingly, the sources ofJiqh are identical to the sources of the law. With characteristic clarity, Coulson has summed up the distinction thus:
Islamic law has been alternatively described as a divine law and as ajurists' law. These apparently contradictory descriptions reveal the basic tension that exists in the system between
divine revelation and the human reasoning of jurists ... The comprehensive system of personal and public behaviour which constitutes the Islamic religious law is known as the Shari'a. The goal of Muslim jurisprudence was to reach an understanding (jiqh) of the Shari' a. 2
Furthermore, many authorities have not always identified with any degree of clarity the essential difference between the Western and Muslim concepts of law. Although the moral and ethical principles underlying the Western concept differ little from those of Islam, the relationship between ethics and the law has been overlaid and obscured by more secular ideas of right and wrong, and of social responsibility. This can be seen particularly in the detailed Western legal codes which are held to reflect the 'will of the people' and which define human rights and obligations as reciprocal and relating essentially to the needs of society. Transgressions are identified (and punished) as crimes against the social order. The traditional Muslim concept, per contra, rests on the proposition that the shari 'a (however defined) is the law of God set down for all time in the divine revelation. Muslims, by virtue of being Muslims, have accepted a positive obligation to seek to implement God's will and to live in consonance with that law irrespective of the conduct of others, both at the individual and the collective level. The emphasis is upon obligations rather than upon rights, and upon the divine origin of the law. The shari'a is not, therefore, 'law' in the normally accepted sense of the term: 'it contains an infallible guide to ethics. It is fundamentally a doctrine of duties, a code of obligations. Legal considerations and individual rights have a secondary place in it. '3
