"No One Can Specialize the General": Norm, Text, and the Jurist’s Role in Islamic Legal Theory

By Omar Farahat
Submitted to Session P6624 (Law, Translation, and Material Culture in Medieval and Early Modern Islamic History, 2021 Annual Meeting
Law
Islamic World;
Islamic Law;
LCD Projector without Audio;
The distinction between general and specific terms and rulings is widely expounded in the Islamic legal tradition and in the modern study of Islamic legal theory. One aspect of the question of the “specialization of the general” that has particularly interested modern scholars is its potential to drive legal reform. For example, in “Is Historicism a Viable Strategy for Islamic Law Reform?” Mohammad Fadel explained that the specialization of general rules is a jurisprudential tool that has the potential of driving legal reform, including towards the formulation of more egalitarian legal principles (see also A. Zysow, The Economy of Certainty, 76-93).

In this paper, I suggest a reconsideration of the general-specific dichotomy in Islamic jurisprudence, taking as a starting point al-Ghazālī’s intriguing claim that “no one can specialize the general.” I argue that underlying the question of legal rigidity or malleability that manifests in the general-specific debate is a deeper concern with the locus of the law, a concern that is shared by theocentric legal systems more broadly (e.g., J. Boler, “Aquinas on Exceptions in Natural Law”). I present this argument by juxtaposing the texts of three prominent jurists representing distinct Islamic theological positions: al-Ghazālī’s Mustaṣfā, al-Baṣrī’s Mu’tamad, and al-Samarqandī’s Mizān, who represent Ash’arism, Mu’tazilism, and Maturidism, respectively.

Specifically, I maintain that the distinction between general and specific is reflective of a concern with the way in which the jurist relates to the text, and the text to norms, a dual concern that pervades classical uṣūl al-fiqh. Some scholars placed norms within language, conceiving the role of the jurist as one of evidence-finding. Others had a clearer division of labor wherein norms resided within divine intent, but words pointed to such intent. Contrary to some reformist suggestions, classical legal theory did not offer mixed theories that combined divine-intent based rulings with exceptions derived from contextual justifications. There was no model in which God intends a general rule, but the jurist restricts it based on social context.

In short, I show that the debates on the general-specific dyad highlighted two distinct approaches to the question of the locus of norms, which placed normativity either in divine will or in language itself. This finding, I argue, can be further expanded to deepen our understanding of uṣūl al-fiqh as a theoretical endeavor designed to grapple with complex theoretical issues of legitimacy and law-making imposed by the revelation-centric nature of the law.