Baber Johansen

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therefore, superior as a common standard to the orders of a ruler that may
lose their validity at his death. The fiqh, thus, guarantees the historical
continuity of the normative standards and through it, the normative
identity of the community. This position was already taken by ShÁfiÝÐ
when he underlined that the community is not a physical or social unit,
but a normative entity that exists in the rules on which it agrees. 37
Thirdly, pace Joseph Schacht, through its norms, fiqh distinguishes
between fields of social action or spheres of the law. It creates and
enforces distinctions between social sub-systems and draws the limits
between them. The summa divisio of fiqh separates the cult (ÝibÁdÁt) from
the legal transactions between particulars (muÝÁmalÁt). Within this
second field, fiqh clearly distinguishes between the social contexts of
legal acts. The norms for the exchange of goods and services cannot be
applied to the field of family and marriage. The husband cannot sell or
lease his wife, in spite of the fact that he owns "the property of the
marital bond" (milk ÝiÒmat al-nikÁÎ). Parties to a trial are not allowed to
make donations to the judge, in spite of the fact that in other social
contexts to make gifts and donations is a recommended and licit part of
social life. Casuistry determines the limits within which a norm applies.
The fiqh thus construes fields of legal acts, distinguished from each other
through specific sets of norms. 38 Together, these different legal spheres
form a normative way of life. This way of life is religiously legitimized
through the fact that the norms that regulate and reproduce it are derived
from the revealed texts by way of interpretation. Fiqh—through the
normative reproduction of this way of life—depicts the Muslim
community as the permanent representative of Islam in history, the
historical subject of Islam. This dimension of the religious community
can be upheld only if its individual members to whom God’s law is
addressed (al-mukhÁÔabÙn) respond to its appeal.
Fourthly, fiqh, while assigning an important place to the cosmic
dimension of religion in the field of the cult (ÝibÁdÁt), does not place it in
the center of the field of legal transactions between private actors
(muÝÁmalÁt). It focuses on human acts and their legal and religious