Shari’ah is a spiritual path towards realizing basic objectives that the Creator wills for man. Dr. Tariq Ramadan defines shar’iah as “a path towards faithfulness.” Shari’ah is NOT a set codex of laws. Its basic objectives (maqaasid) as defined by Ash-Shatibi are the protection of life, intellect, religious practice, property and posterity.
Fiqh/jurisprudence is a vehicle on the path towards actualization (shari’ah). There are different methods of deriving jurisprudence for ritual worship (‘ibabdaat) and social transactions (mu’amalaat) which also is connected to punishments for criminal acts (hudood) among the 4 schools of thought among Sunnis (Hanafi, Maliki, Shafi’i & Hanbali), the 3 schools within the Shi’is (Zaydi, Isma’ili/Bohri & Ja’fari) and the Ibadi. There are 8 schools of recognized jurisprudence. Interpretations of jurisprudence differ not only upon textual interpretation of the Qur’an and varying ahadeeth but also geography and social customs.
Whereas ritual worship is something that is between a person and the Creator, the implementation of social transactions and punishments depends much on governing structures. If a person does not, for instance, get involved in compound interest loans according to his/her fiqh, they are free to do so because there is no government mandate forcing people to take loans. If a person, however, wants to take a 2nd spouse according to their fiqh, he is not entitled to do so if the governing entity has made it illegal since it is not a mandatory/compulsory part of faith. Similarly since Islam does not condone vigilantism, 100 lashes for fornication can’t be enforced according to the application of fiqh in a land where the governing entity does NOT permit such as a proper punishment in courts of law.
The vast majority of Muslim majority countries use various fiqh for family law but not hudood like chopping off hands or whipping fornicators. Even in rare cases where a hand is chopped for theft such as in Saudi Arabia, it is not done for a first offense nor if the reason for theft was do to hunger or extreme need. The issue of whipping because of 4 witnesses is not because of the action of fornication alone, but for lewd and lascivious behavior. If persons are caught having sex out of wedlock by 4 mature, sane and truthful people who are over the age of puberty, they most likely are committing an act of public indecency, which is a crime against society not just an act between 2 people. Again, the punishment for such is a deterrent from spreading moral corruption in society.
A particular fiqh then could be compared to Catholic Canon Law or Halacha (Judiac Law) within this context.