Generality and Exception in Islamic Legal Theory: Intent, Language, and the Jurist’s Role

Abstract

Abstract Whenever discussions arise about the generality or specificity of law and legal provisions, they occur on at least two different levels. On the external level, there is an expectation that law should be general insofar as similar cases and factual situations are concerned, and specific with regards to different and exceptional cases. This is often invoked as a requirement for what constitutes good law or proper governance. On the internal level, generality refers to the expectation that law must offer coherent rules, principles, or standards of action in some form. General and specific language (al-ʿām wal-khāṣṣ) in Islamic legal theory (uṣūl al-fiqh) enjoyed a noteworthy degree of attention in modern scholarship. This attention largely centers on those concepts’ external potential for driving reform in specific areas of law. This Article, by contrast, focuses on the generality–specificity binary as a tool for ensuring the law’s internal cohesiveness, including its claims to legitimacy and its enforceability. To this end, the Article offers an overview of the examination of general and specific expressions in the thought of two influential twelfth-century C.E. (sixth-centuryA.H.) jurist-theologians of different juristic and theological affiliation: the Shāfiʿī-Ashʿarī Abū Ḥāmid al-Ghazālī (d. 1111 C.E./505 A.H.) and the Central Asian Ḥanafī-Māturīdī ʿAlāʾ al-Dīn al-Samarqandī (d. 1145 C.E./539 A.H.). The Article then goes on to argue that ensuring a coherent relation between intent, language, and norms was a central guiding purpose of these studies. We can see this with particular clarity in the fact that, despite reaching comparable practical positions concerning how norms ought to follow from general language, each jurist attained his conclusion through a different path, reflecting different understandings of the relation of norms to divine intent.