I received the following e-mail today asking for my comment:
"We know well that literally Shariah means “ path leading to water” which means path leading to “ life itself”. Shariah are rules and regulations prescribe to the Believers (mukallaf) by God Almighty embodied in the Quran and Sunnah of the Holy Prophet pbuh.
But some of these rules and regulation are also man-made, which we call fiqh. Fiqh is the product of the ‘aql (intellect) through the process of qiyas,Ijtihad,Istishab, Istihsan. The ulama derive new rules or fatwa to solve current problems of Muslims. This body of Shariah is call fiqh.
Some rules resulting from fiqh have caused serious disagreement (khilaf)among Shariah scholars (ulama). Issues such as bay enah, tawarruq,CM,Islamic hedge funds are some examples. These are not distinctly Quranic (ie not explicitly revealed in the Quran) in nature but sponsored by some ulama at the supervisory level (government or corporate) through Fiqh, under the pretext of darura,maslaha,uruf,umum balwa etc."
Such concepts as you mentioned, i.e darura, maslaha, uruf, umum balwa are all have their basis in the original sources of the Shariah. But the issue here is that of whether those parties truly apply them in the right context/circumstances. For me if all those legitimate concepts are employed
just to facilitate money/debt trading (ribawi practices), of course that is not acceptable. Although some may argue that (modern application) may not necessarily be haram, but at least they are Makruh/shubhah where the best option is not to make use of them. According to a well-known hadith, the halal is clear, so is the haram, but between these two there are grey areas/shubhah, and for a Muslim to avoid shubhah is a better option for the sake of his religion and his standing/reputation.
On the second point about fiqh, fiqhi opinions are not purely of 'aql origin as the 'aql is only employed to discover what the law is; it is not the process of inventing the law they way modern legislation is. In ijtihad, the jurists with the aids of those techniques do the search for the law in the original sources trying all the best that they can. It’s like in oil exploration where the geologists and all the other experts employ the best of their knowledge and skills to do the search. When they discover the oil, can we say that they have thus made oil for us?. Or you may go treasure hunting and you are given all the signposts/clues; you may be able to find the treasures or you may not but the fact is that you have been given all the major signs leading to the place. Similarly the jurists/fuqaha’ study the signs/shariah evidence and techniques (via usul al-fiqh) and they go “law hunting”, they may get it or they may fail; but they must employ the best of their knowledge and skills to do that, just like in the process of the oil discovery operation.
However the true shariah law/hukm remains with Allah the Al Mighty. If the jurist got it right he will be given 2 rewards otherwise only one, for the best efforts carried out to help discover the law of Allah SWT.