Along with an academic, traditional and formalist study of fiqh, It is important to have a natural understanding of fiqh as well.
What is a natural understanding of fiqh? It is an understanding of fiqh that seamlessly integrates with real people and their real experienced lives.
What is a formalist understanding of fiqh? It is an understanding of fiqh that is dictated by strict adherence to the detailed and gritty rules, structure and principles of classical fiqh encyclopedias and manuals.
While yes I do not devalue traditional formalist fiqh – in fact it is critical to form the intellectual foundation of a jurist – I feel that it’s most native setting is in the courtroom of the Qadi or the office of the Mufti. Outside of those, whether in the masjid, counseling sessions, spiritual tarbiyah or the level of community and society, it can be detrimental to see everything in strict rulings-based fiqh formalism. Formalism in itself is not wholly a problem though, as it grants fiqh a theoretical structure, pedagogical framework and safety net to retreat into and build upon.
A lot of students of fiqh may find it difficult to appreciate the natural aspect of fiqh because they haven’t studied much beyond their madhhab-based fiqh manuals. Although once the student enters into the study of the Qawaid ul-Fiqhiyyah (the general principles of Fiqh), the Maqasid al-Shariah (the overall goals and principles of the Shariah), and Comparative/Modern fiqh and begins to spend more time with works of Fatwa and scholars who are involved in the process of Fatwa and Qadā with real-life cases, they will begin to sense the strict formalism of fiqh shifting under their feet as they realize that real life issues are more complex and convoluted than formalism can allow to envision the solutions for.
Some of the madhhabs built this naturalism into their usul and fiqh, although strict attitudes of taqlid, ijtihad and traditionalism may render its naturalist origin obfuscated. Examples of these are the notions of maslahah and istihsan in the Maliki and Hanafi schools, and flexibility in giving guidance during fatwa from a non-relied-upon or extra-madhhab position in the Shafii school.
What helps further is when the student combines their traditional study with the contemporary social sciences such as psychology and sociology, in which case they will be able to systematize their understanding of reality and attempt a higher resolution synthesis and harmonization of formalistic fiqh with the systematic analysis of people and society.
Another way of helping traditional students of knowledge to accomplish this is to leave their cultural bubbles and spend much more time in the world of the very Muslims who come to them with questions or for counseling. For most who study full time this is difficult to accomplish but after their studies it is very possible. Being an Imam is a step up but it’s not enough, as there is not much relationship building except with people who are already regulars at the masjid and aligned with the train of thought of the Imam.
Spending some time in a contemporary university doing a degree, working a normal job in the real world, or spending a daily portion of time with real everyday people who aren’t the typical seminary student can be valuable. Again the trust in formalism will begin to melt away out of sheer necessity in making sense of and surviving as a traditional student of fiqh in the real world.
Otherwise what the student is left with is a formalist fiqh-centric understanding of tradition and lived reality, which is not a necessary understanding of the Shariah, as our tradition provides alternate understandings. One may possess a more tasawwuf oriented, Sirah oriented or Kalam oriented ontological paradigm of understanding real-life problems, and these may often be superior for solving real-life problems than a purely fiqh-centric worldview.
An easy example of this is family disputes. While it’s easy to just say that X or Y issue in a family issue is haram or halal, if won’t necessarily solve the family issue in question, all we will obtain is a ruling of it. Rather what would be more useful would be speak to people’s hearts, their beliefs about family and relationships, heal their connection with God and spiritual state, and address any mental or sociopathic conditions along the way. Simply giving a Fatwa in this situation wouldn’t do much. People are much more complex and multi-dimensional than a legal verdict.
And that’s what fatwas are – legal verdicts. Formalist fiqh is still useful in it’s ability to categorize, create concrete boundaries and mental structures, but when dealing with real people and complex, fast evolving and amorphous societies it begins to show it’s limitations, and this is where more polymath scholars and solutions are needed. Even some of the earliest Imams – before the codification of usul and the schools, exhibited much more flexible methodologies in how to do fiqh.
It is unfortunate that many of our community Imams, Muftis and scholars are not aware of this issue or if they are aware, what ends up happening is that they attempt to project from fiqh manuals onto the real world without that middle bridge of understanding people and society in a systematic fashion, relying instead on vague conceptions of ‘wisdom’ or ‘tafaqquh’. What ends up happening is that the Shariah begins to feel confining and rigid, irrelevant to the times, yet because of the reminders of ‘wisdom’ and ‘tafaqquh’ Muslims lose faith in traditional scholarship altogether and look for ‘natural’ law and ethics elsewhere, whether it be in revisionist, non-traditional readings of fiqh, or even hermeneutical structures that have no basis in Islamic tradition.
Others have become aware of the importance of this ‘natural fiqh’ but have not complemented it with a study of formalized fiqh, resulting in an understanding Shariah that is too amorphous to demonstrate intellectual power and academic rigor, which results in people conceiving of the Shariah to be highly subjective – scaring some off into strict formalism or anti-madhhabism, or leading others into Western liberalism and secularism.
The truly effective faqih is the one who keeps one foot firmly planted in formalism, with the other in a land which knows that reality and elements of chaos naturally go hand in hand.